9911796707
TMI Blog2024 (7) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... pany (in liquidation) by way of being a Debenture Holder, whereas Bank of Baroda is the Debenture Trustee, besides being a secured creditor of the company (in liquidation). 3. On a perusal of the instant application, it is brought forth that Bank of Baroda initially filed a claim before the Official Liquidator, on behalf of the Debenture Holders of the company (in liquidation), to the tune of Rs. 12,00,21,599/- and vide letter dated 04.09.2008, the Official Liquidator adjudicated the claim for a sum of Rs. 8,34,04,285/-, rejecting a sum of Rs. 3,66,17,714/- on the ground that such amount sought by the Bank was in the nature of penal interest. Thereafter, Bank of Baroda instituted Company Appeal (SB) No. 08/2011 challenging the said adjudication, and this Court vide order dated 01.06.2011, set aside the adjudication thereby directing the Official Liquidator to adjudicate the claim afresh. 4. It is stated on behalf of the applicant that vide order dated 28.09.2012, this Court directed Bank of Baroda to adjudicate the claim of the applicant up to the date of winding up, that being 09.08.2012, and that such adjudication was to be carried out in terms of Rule 154 of the Companies (Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company as on date is Rs. 22,75,12,563.03, the Official Liquidator is in a position to satisfy the entire claim of the Bank of Baroda. The balance amount shall be paid by the Official Liquidator to the Bank of Baroda within three weeks from today on his furnishing the usual undertaking. In the second capacity (as a debenture trustee) the claim of the Bank of Baroda (as noted supra) has been admitted for Rs. 8,34,04, 285/- out of which an amount of Rs. 1,31,15,000/- has been disbursed to the Bank of Baroda. The Bank of Baroda shall furnish all the requisite details of the debenture trustee to the Official Liquidator who in terms of the fund position available with him is in a position to satisfy this entire claim of the debenture trustees as well. The petitioning creditor before this Court (M/s Kostub Investments Ltd.) is a debenture trustee; she had admittedly filed her requisite documents before the Bank of Baroda; her claim shall be adjudicated upon by the Bank of Baroda up to the date of the winding up i.e. up to 09.8.2012 in terms of the Rule 154 of the Company (Court) Rules 1959 and complete payment be made to the petitioning creditor within a period of three weeks." 7. A mo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner, would be the date when the liquidation process commenced, which is from the appointment. of Provisional Liquidator. 11. Mr. Sharma's reliance on Section 530(8)(c) of the Act which defines the expression 'relevant date' also possesses considerable merit. Although Section 530(8) begins with words ''for the purpose of this section" which suggests that definitions contained therein are applicable only to Section 530, nonetheless, definition of 'relevant date' under Section 530(8)(c) would also be applicable to Petitioner, whose claims are covered under Section 529A of the Act. Non-Applicants claim is based on the Debenture Certificate, a written instrument of debenture which is redeemable and partly convertible, thus, they fall under the definition of secured creditors. The claims of other secured creditor - Bank of Baroda, and also of the workers, have been adjudicated till the date of appointment of Provisional Liquidator. Thus, even though the impugned direction has been issued to the Bank of Baroda (Debenture Trustee) to satisfy the claims of debenture holders, and not to the OL, nonetheless, since Bank of Baroda's own claims as a secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the winding up process begins from the date of appointment of the Provisional Liquidator, although the same is not stipulated in the scheme of winding up. 9. It is also submitted that the conclusion arrived at in the impugned order is misconceived as it is based on the incorrect premise that the claims of other secured creditors of the company, namely the Bank of Baroda and the Workmen, have also been adjudicated up till the date of provisional winding up. In this regard, it is submitted on behalf of the applicant that despite receiving a sum of Rs. 7.56 crores as full and final settlement, Bank of Baroda was subsequently granted a sum of Rs. 6.50 crores vide order dated 31.09.2019, which sum was in favour of the Bank up to the date of final winding up. 10. Reliance has been placed on the decision of the Bombay High Court in the case of Vishwa Nath Namdeo Patil v. The Official Liquidator of Mis Swadesh Mills 2013 SCC OnLine Bom 1816, dated 28.10.2013, wherein it is stated that the Court held that the relevant date for adjudication of claims made by workers is the date of final winding up and not the date of appointment of the Provisional Liquidator. In this regard it is sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e outset, the applicant while claiming parity with the determination of the claim period with interest, as done in the case of Bank of Baroda, has lost sight of the fact that Bank of Baroda had dual claims against the company (in liquidation); firstly, its claim as a secured creditor for lending and extending banking limits to the company (in liquidation); and secondly, in capacity as a Debenture Trustee. 15. A bare perusal of the order dated 28.09.2012 passed by this Court would substantiate the aforesaid dual claims of the Bank of Baroda, which had submitted its claim for Rs. 7,56,02,275/- as secured creditor and claim for Rs. 8,34,4,285/- as Debenture Trustee. Insofar as the plea by the applicant is concerned, that a sum of Rs. 7,56,02,275/- was paid towards full and final settlement of its claim and that it was paid another sum of Rs. 6.50 crores towards its claim upto the date of final winding up i.e. 09.08.2012, the said aspect appears to be factually incorrect as the applicant overlooks that the DRT-II, New Delhi in O.A. No. 54/2002 passed an order thereby making the Bank of Baroda entitled to recover a sum of Rs. 7,57,77,191/- plus interest towards loan defaults, which ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank in terms of the order dated 22.3.2018 subject to an undertaking to be given by the bank that in case this court is of the opinion that the amount has been wrongly released to the bank, the Bank of Baroda would return the same. In that eventuality the right to recover from the respondents in the OA filed before DRT would continue to survive. 4. Now, the Official Liquidator states that there are more claims pending including one of EPFO for Rs. 3,21,50,387 and from the Commercial Tax Department of Rs. 1,17,27,026 approximately. There are six other claims which the Official Liquidator is assessing to be total of about Rs. 1.5 crores. 5. Keeping in view the fact that the total claims which are pending/in process by the Official Liquidator is below the amount of Rs. 27 crores and also keeping into account the undertaking given by Bank of Baroda it would be in the interest of justice and also in the interest of the contributors that the amount of Rs. 6.50 crores be released to Bank of Baroda within seven days subject to the undertaking furnished by Bank of Baroda to repay back the said amount to the Official Liquidator with reasonable interest as applicable to the savings bank ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
