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TMI Blog2008 (5) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... ,59,800/- 2. The Official Liquidator has also sought the permission to distribute an amount of ₹ 7,02,59,800/- amongst the workers of the Company as per their respective entitlements, after receipt of amount of ₹ 2,82,59,800/- from the Secured Creditors. 3. This Court has issued notice on 20.11.2006. Vide order dated 09.02.2007, Textile Labour Association was joined as a party respondent. The Official Liquidator has filed his further report on 26.02.2007. Affidavit-in-reply is filed on behalf of Textile Labour Association on 07.03.2007. Affidavit-in-reply is filed on behalf of Kotak Mahindra Bank Limited on 22.03.2007. The Official Liquidator has filed further report on 02.04.2007. Affidavit-in-rejoinder is filed on behalf of Textile Labour Association in response to the affidavit-in-reply filed by Kotak Mahindra Bank Limited. On behalf of ICICI Bank Limited, an affidavit-in-reply is filed on 28.11.2007. Similarly, on behalf of IFCI Bank Limited, an affidavit-inreply is filed on 21.01.2008. Further affidavit was filed on behalf of Textile Labour Association on 08.04.2008. After completion of pleadings, matter is taken up for hearing. The Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iquidator was directed to verify the documents and claims made by the Secured Creditors and to fix up the final ratio of distribution amongst the secured creditors and workers of the Company. The Official Liquidator has further stated that United Bank of India did not have any security of hypothecated goods and the said Bank is having the second charge on the immovable properties. It is, therefore, the say of the Official Liquidator that unless the first charge holder Secured Creditors are fully paid, nothing can be paid to the United Bank of India. The Official Liquidator, after having examined the documents submitted by ICICI IDBI and also after examining the record maintained at the office of Registrar of Companies, has determined the position of the Secured Creditors having first charge on the properties of the Company as under :- A) A charge of ₹ 2.50 Crores is created in immovable properties of the Company and registered in favour of ICICI as Debenture Trustee on 14.05.1987. Another charge of ₹ 10 Lacs is also created on immovable properties of the Company and registered in favour of ICICI as a debenture trustee on 29.11.1988. Therefore, ICICI is a Secured C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02. IDBI 1,65,00,000/- 03. IFCI 55,00,000/- 04. IIBI 55,00,000/- 05. ICICI Debenture Trust 3,60,00,000/- 8. The Official Liquidator has further submitted that the claims of the workers have been fully examined by the Chartered Accountant and investigation report is also served. On the basis of examination of the workers claim, an amount of ₹ 38,18,00,505/- is found as admissible claims of the workers ranking pari passu with the secured creditors under Section 529-A of the Companies Act, 1956 as against the total claim of ₹ 45,41,21,602/-. After determining the fund position, the Official Liquidator has determined the final ratio of distribution amongst the Secured Creditors and workers of the Company as under :- Sr. No. Secured Creditors Amount of claim admitted as Secured (Rs.) Ratio of Distribution. 01. ICICI 55,00,000/- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections against the prayers to be granted in favour of the Official Liquidator. They have submitted that the issue is concluded by the order of this Court which is under challenge before the Division Bench of this Court. Over and above this, Mr. Sandeep Singhi has placed heavy reliance on the decision of the Delhi High Court in the case of In Re : Bokiyu Tanneries Ltd., reported in wherein the Delhi High Court has taken the view that Sections 529 529-A of the Act therefore create two different classes of creditors who have been treated as 'priority preferential creditors' having over-riding rights, namely, workmen and secondly, the secured creditors. The said sections however do not make any distinction between secured creditors having the first charge or the second charge. All the secured creditors have been treated as a separate class and have been clubbed together under Sections 529 529-A of the Act without any distinction. Similarly, under Section 529 (3) (c) also, aggregate of debts of all secured creditors whether having first charge or second charge have to be taken into account. Section 529-A does not make any difference between the secured creditors having th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irst issue is concerned, the position in law is well settled. This Court in the case of IDBI V/s. Official Liquidator of M/s. Rustom Mills Industries Limited and others has already decided this issue. While rejecting the contention raised on behalf of Textile Labour Association to the effect that the secured creditors for the purpose of distribution can be considered for only those who are secured creditors for the first charge and secured creditors having second charge or having charge other than first charge are required to be included for the purpose of giving effect to pari passu charge as per Section 529 read with Section 529-A of the Companies Act, 1956, this Court has held that the said contention deserves to be rejected because the language is every secured creditors and not the secured creditor having first charge . Reliance placed on the decision of the Hon'ble Supreme Court in the case of ICICI Bank Limited (Supra) by Mr. Yadav, does not lead the case of the Official Liquidator any further. Firstly, the said decision has already been taken into consideration by this Court while deciding the case of IDBI V/s. Official Liquidator of M/s. Rustom Mills Industrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, they have not submitted their proof of debts. Considering this controversy, Secured Creditors are hereby directed to submit the proof of debt, if not submitted earlier and if they have submitted, necessary receipts obtained by them from the office of the Official Liquidator may be produced before him within two weeks from the date of receipt of certified copy of this order or from the date of receipt of writ from this Court, whichever is earlier. On receipt of the proof of debt from the secured creditors, and if such proof is already having with the Official Liquidator, the same shall be forwarded to the Chartered Accountant for the purpose of verification of the claim of the Secured Creditors and working out the final ratio between the Secured Creditors and workers. It is, however, made clear that while finalizing the claim of the secured creditors, the Chartered Accountant will consider the dues of secured creditors having first charge and second charge on the date of winding up order. On receipt of such report from the Chartered Accountant, the Official Liquidator will file report before this Court for appropriate relief including further disbursement between the secured cred ..... X X X X Extracts X X X X X X X X Extracts X X X X
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