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Judgment
A.J. Desai, J
By way of the present Judge's Summons, the applicant Banks-Secured Creditors have prayed to direct the Official Liquidator to disburse on ad-hoc basis an amount of sale proceeds of Rs. 34.01 Crores realized in public auction for sale of residential plot Nos. 5 to 8 as confirmed by this Court vide oral order dated 24.1.2019, in favour of the applicants on suitable terms as may be imposed by this Court.
Mr. K.M. Parikh, learned advocate appearing for the applicants would submit that after winding up of the company, the properties of the Company in liquidation were sold through e-auction and the said sale was confirmed by this Court vide order dated 24.1.2019 for an amount of Rs. 34.01 Crores towards sale of residential plot Nos. 5 to 8 in favour of Aaron Infraspace LLP. Thereafter, the said sale consideration was received by the Official Liquidator. Hence, the present application may be allowed.
In response to the notice issued by this Court, the Official Liquidator has filed his report dated 3.12.2019. Mr. Jeet Bhatt, learned advocate appearing for the Official Liquidator would submit that after the sale proceedings were finalized and the amount of sale consideration was received from the auction purchaser, the Official Liquidator invited claims from all classes of Creditors and workers of the Company in liquidation. In pursuance of the said advertisement, the Official Liquidator received 8 claims of Secured Creditor Banks, 12 claims of unsecured creditors and 1 claim of Preferential Creditors from Assistant Commissioner of State Tax Unit 6, Ahmedabad. However, no claims from the workers of the Company in Liquidation have been received. Thereafter, vide letter dated 9.10.2019, the Official Liquidator appointed M/s. Kamal C. Mehta & Company to adjudicate/quantify tentative ratio for ad-hoc disbursement to the applicant Banks-Secured Creditors. Thereafter, the Chartered Accountant has submitted claim adjudicate/quantify report on 21.11.2019, a copy of which is also produced along with the report. He would further submit that the applicants Banks may be directed to file an undertaking to the effect that this disbursement is purely on ad-hoc basis and it is subject to final settlement and adjudication by this Court in future depending upon the final ratio based on final report of the Chartered Accountant and if it is found that any excess amount is paid to the applicants, then they shall refund such amount based on final ratio to be ascertained with interest as per prevailing market rate. He, therefore, would submit that appropriate order may be passed.
I have heard learned advocates appearing for the respective parties and perused the contents of the application, report of the Official Liquidator as well as report of the Chartered Accountant.
Paragraph 8 of the report of the Official Liquidator reads as under:-
"8. That, the Official Liquidator respectfully submits that the present fund position of company as on dated 31.10.2019 is of Rs. 33,59,38,144/-. It is proposed to disburse Rs. 32 Crores out of Rs. 33,59,38,144/- as an ad-hoc disbursement under Sections 529A and 529 of the Companies Act, 1956 and to keep aside Rs. 1,59,38,144/- for future liquidation expenses or as may be directed by Hon'ble High Court. Further, it is submitted that the above mentioned disbursement may be considered by Hon'ble Court subject to filing undertaking cum Affidavit by all Secured Creditors as per usual practice.
In connection to above, it is submitted that, if Hon'ble Court is inclined to consider the present application filed by Secured Creditors, under such circumstances, the Official Liquidator most humbly submits that the claim amount and adjudicated ratio of outstanding principal as per report dated 21.11.2019 of M/s. Kamal C. Mehta & Co. panel Chartered Accountant for ad-hoc disbursement as on the date of winding up order is as follows:-
Sr. No
Name of Secured Creditor
Principal amount due as on winding up order as per SOA
Principal amount due as per claim filed by the bank (without interest)
Ratio
Annexure
Proposed ad-hoc disbursement U/s. 529 A & 529 of CO. Act, 1956
Axis Bank
,10,79,561
,90,04,297
13.96
A
,46,72,000/-
Bank of India
,58,15,64,266
,58,15,64,265.52
27.98
B
,95,36,000/-
Central Bank of India
,97,08,429
,91,25,026.24
14.8
C
,75,20,000/-
Punjab National Bank
,77,42,920
,77,42,920.41
15.89
D
,08,48,000/-
Rajkot Nagrik Sahakari Bank Limited
, 98,22,824
,98,22,823.64
3.54
E
,13,28,000/-
State Bank of India
,69,43,756
69,43,756.23
8.09
F
,58,88,000/-
Bank of Baroda
,79,10,312
,41,88,329
7.16
G
29,12,000/-
Union Bank of India
,33,22,272
,17,93,575.67
8.53
H
,72,96,000/-
TOTAL
,65,80,94,340
,65,01,84,993.71
,00,00,000
However, it may be noted that the proposed disbursement is purely on ad-hoc basis & it is subject to final settlement & adjudication by the Hon'ble High Court in future, depending upon the final ratio based on final Chartered
Considering the above fact, the present application is allowed. The Official Liquidator is permitted to disburse on ad-hoc basis the amounts mentioned in the above referred table to each applicant-Secured Creditor Bank. The applicants Banks are hereby directed to file an undertaking with the Official Liquidator to the effect that this disbursement is purely on ad-hoc basis and it is subject to final settlement and adjudication by this Court in future depending upon the final ratio based on final report of the Chartered Accountant and if it is found that any excess amount is paid to the applicants, then they shall refund such amount based on final ratio to be ascertained with interest as per prevailing market rate.