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TMI Blog2020 (7) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a Company Petition No. 756 of 2014 inter-alia praying for winding up of the respondent company. On 5th May, 2017, this Court admitted the said company petition and restrained the respondent from alienating, transferring, disposing off its assets in any manner whatsoever and appointed a provisional liquidator to take possession of the assets of the respondent. By an order dated 4th December, 2017 passed by this Court, the respondent was directed to be wound up and the official liquidator was directed to take charge of the assets of the respondent. 3. The applicant filed Company Application No. 171 of 2018, Company Application No. 170 of 2018 and Company Application No. 127 of 2018 for the sale of certain vessels/tugs of the respondent exclusively mortgaged to the applicant. It is the case of the applicant that when such applications were made by the applicant, neither the applicant nor the official liquidator was in a physical possession of the of the vessels in respect of which those Company Applications were filed. By orders dated 14th February, 2018, 14th March, 2018, 28th March, 2018 and 4th April, 2018, the vessels/tugs of the respondent mortgaged to the applicant were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds of the vessel including maritime liens and maritime claims shall be considered by the official liquidator in accordance with the applicable law of priority of claims. This Court directed that cost incurred by the applicant towards sale of vessels including advertisement charges and manning charges shall be paid by the official liquidator from out of the sale proceeds. 8. It is the case of the applicant that by an order dated 4th April, 2018 in Company Application No. 171 of 2018, this Court noted that the applicant was entitled to submit bill of costs to the official liquidator indicating the expenses incurred by the applicant, so far for manning the vessel and towards formalities of accomplishment of Court sales. This Court also directed that within a week of communication of the costs by the applicant, such charges and costs shall be paid by the official liquidator to the applicant without reference to the Court. 9. On 19th June, 2018, the applicant submitted its affidavit of proof of debt, for reimbursement of a total amount of Rs. 1,06,46,193/-. There was delay in filing the said affidavit of proof of debt. The applicant applied for condonation of delay in filing the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re incurred and squarely fell within the ambit of the aforementioned orders passed by this Court, the official liquidator has rejected these claims contrary to the orders passed by this Court. She submits that all such expenses i.e. travelling, lodging, management charges, port charges, salaries and supply and provisioning of food aboard the vessels/tugs were in connection with the Court sales and/or manning and maintenance and thus the official liquidator was bound to reimburse the said amount incurred by the applicant towards those expenses. 12. It is submitted that those expenses were incurred with a view to safeguard the said vessels/tugs. The applicant was constrained to incur all such expenses since official liquidator has refused to release any monies from the general pool of the respondent. The official liquidator did not take any steps to take possession of the assets of the respondent and more particularly the vessels/ tugs of the respondent which were mortgaged in favour of the applicant. The official liquidator refused to incur any expenses to salvage the vessels/tugs and to maintain those vessels/tugs. 13. It is submitted by the learned counsel that the Vessel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion filed by the applicant for the sale of vessel MT Polaris and confirmed the said sale in favour of M/s. Pragati Marine Services Pvt. Ltd. for a sum of Rs. 7.30 crores. By an order dated 14th February, 2018, this Court confirmed the sale of Gal Ross Sea for an amount of Rs. 3,01,00,000/-. By an order dated 28th March, 2018, this Court confirmed the sale of Tug Sangita for an amount of Rs. 2,10,00,000/-. Both these orders were passed on the Company Applications filed by the applicant to seek permission to sell those tugs which were secured in favour of the applicant by way of registered mortgage under Section 51(1) of the Merchant Shipping Act, 1958. 16. It is submitted by the learned counsel that the official liquidator has already allowed the claim of reimbursement of Rs. 1,59,300/- towards expenses incurred for the sale of the vessels i.e. Gal Ross Sea, Gal Beaufort Sea and Sangita which were found admissible by the official liquidator. The official liquidator also allowed the claim of Rs. 3,71,241/- found admissible towards expenses incurred for the sale of vessel i.e. MT Polaris. The official liquidator had taken possession of the vessel MT Polaris on 6th February, 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taking possession after the date of the said order dated 25th January, 2018 and incurred pursuant to the said order can be treated as liquidation expenses and would not cover the travelling and lodging of Rs. 79,374/-, manning expenses of Rs. 1,63,886/- and port charges of Rs. 2,87,675/- incurred by the applicant since those expenses were neither approved by this Court nor conveyed to the official liquidator prior to incurring such expenses. 20. It is submitted by the learned counsel that the travelling and lodging expenses of Rs. 79,374/- have been rightly rejected by the official liquidator as those expenses could not be judged by the official liquidator as to whether they were minimum, required and economical. Manning expenses of Rs. 1,63,886/- have been rightly rejected in view of paragraph 10 of the order dated 25th January, 2018 passed by this Court. He submits that in so far as the port dues of Rs. 2,87,675/- are concerned, since the said claim would fall under Section 530 of the Companies Act, 1956 being Government dues, would be paid after payment to workman and secured creditors. If such claims are admitted, it would result in disturbing the priority mechanism provided u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue until further orders. This Court recorded the statement made by the learned counsel for the applicant that the expenses of Rs. 10,00,000/- p.m. were being incurred on the said agency alone. She submits that the huge amount have been incurred by the applicant to salvage the situation. 24. Learned counsel invited my attention to the letter dated 16th November, 2017 from the applicant to the official liquidator contending that the applicant had exclusive charge over the vessels/tugs i.e. Malaviya-Ten, MT Polaris, MT Sangita, MT Gal Beaufort and MT Gal Ross Sea. She submits that the applicant had specifically contended that since the respondent had abandoned the vessel due to non availability of funds and the official liquidator was still in the process of taking over the possession of the vessel, applicant being the secured creditor has exclusive charge over the vessel thought it was prudent for the applicant to and had taken steps to secure and man the said vessel by appointing Hoger Offshore and Marine Private Limited vide an agreement dated 31st October, 2017 as its agent. She submits that in view of the fact that the applicant had salvaged the situation and had incurred huge a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Gal Ross Sea to M/s. Akil Corporation in accordance with the terms proposed by the party. 27. By another order dated 1st March, 2018 passed by this Court in one of the Company Application filed by the applicant, this Court directed that the official liquidator shall not disburse any amounts received by the sale of the two tugs i.e. Gal Beaufort Sea and Gal Ross Sea without appropriate orders from this Court. It was made clear that if the official liquidator proposes to disburse or utilize the said amounts, the official liquidator shall give prior notice to the applicant or its advocate. This Court directed that all charges payable for the vessels including the port charges up to date of the said order shall be to the account of the official liquidator, to be paid from out of the sale proceeds coming into the hands of the official liquidator in pursuance of the said order. This Court also clarified that all claims against the sale proceeds of the vessel including maritime liens and maritime claims shall be considered by the official liquidator in accordance with the applicable law of priority of claims. 28. This Court directed that the charges incurred by the applicant towards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the applicable law of priority of claims. This Court further directed that the costs incurred by the applicant towards the sale of the vessel including advertisement charges and manning expenses shall be paid by the official liquidator from out of the sale proceeds as liquidation expenses. The charges receivable by the port authorities in respect of the vessel shall be recovered from the official liquidator. 31. By an order dated 4th April, 2018 passed by this Court in one of the Company Application filed by the applicant directed that the applicant may also submit a bill of costs to the official liquidator, communicating the expenses incurred by the applicant so far for manning the vessel and towards formalities for accomplishment of the Court sales. This Court directed that payment of those expenses shall also form part of the official liquidator's report presented to the Court. This Court also directed the applicant to raise a bill of costs including manning charges incurred by the applicant as also advertisement charges paid for sale of the vessel MT Polaris and directed the official liquidator to pay such charges and costs to the applicant without reference to the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ya-Ten is concerned, the official liquidator has rightly admitted part of the claim in the sum of Rs. 26,79,015/- on the ground that the official liquidator had taken possession of the said vessel only on 4th January, 2018 and the sale had been confirmed by this Court on 4th April, 2018. Similarly, the official liqudiator also rightly rejected the claim for salary remittance for the month of June 2017 on the similar ground in respect of the said vessel Malaviya-Ten. Travelling expenses in the sum of Rs. 19,935/- is also rightly rejected by the official liquidator on the similar ground. The official liquidator has already allowed the claim of Rs. 49,584/- towards publication charges. 36. In my view, the official liquidator has rightly rejected the claim for supply of food provision on board on 4th September, 2017 in the sum of Rs. 42,040/-. The claim for port charges in the sum of Rs. 6,51,473/- is rightly rejected on the ground that official liquidator had taken possession on 6th February, 2018 and as the same were neither approved by this Court nor informed to the official liquidator prior to incurring such expenses and thus could not be considered as liquidation expenses. The ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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