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Judgment
K.A. Puj, J.—Since all these three Company Applications deal with the same subject matter i.e. disbursement of the amount realized on sale of the assets of the Company in liquidation and since they were heard together, the same are being disposed of by this common judgment and order.
Company Application No. 14 of 2010 is filed by the Industrial Development Bank of India (IDBI) praying for the direction to the Official Liquidator to disburse and pay an amount of Rs. 61 Crores realized from the sale of the assets and properties of M/s. New Gujarat Synthetics Company Limited (in Liquidation) in appropriate proportion between Secured Creditors and Workers or the amount which is found due and payable after deducting advertisement expenses and expenses towards Valuer's bill.
This Court has issued notice on 21.01.2010 and thereafter on 29.06.2010, directed all the Secured Creditors to file their affidavits of proof of debt along with decree, if any, with the Official Liquidator, if not filed so far and place the copy thereof on the record of the present proceedings.
Company Application No. 17 of 2010 is filed by IFCI Limited praying for the direction to the Official Liquidator to file a detailed report containing full details of the undistributed amount lying / funds available at present with him in respect of proceeds that were received out of sale of properties and assets ""movable as well as immovable of Unit Nos. 1 & 2 of M/s. New Gujarat Synthetics Company Limited (in Liquidation) and disbursement made to the Secured Creditors and Workers therefrom. The applicant IFCI has also prayed for the direction to distribute undistributed / undisbursed funds as well as interest accrued thereon and now lying / available with the Official Liquidator to the applicant for its inter-se disbursement among the applicant and other eligible Secured Creditors, having the first charge on property of Unit No. 1 of M/s. New Gujarat Synthetics Company Limited (in Liquidation), in the ratio as per the sharing pattern agreed for their entitlement in the meeting of the Secured Creditors. The applicant has also prayed for adhoc distribution of 50% of amount of sale consideration of Rs. 61 Crores deposited with the Official Liquidator, or any such suitable amount which this Court deems proper to the applicant before 31.03.2010. The applicant has further prayed for the direction to SBI"" respondent No. 5 to refund the amount of Rs. 62,38,801 (Rs. 66,79,584 - Rs. 4,40,783) immediately that has been received by it in excess of its entitlement with interest at the rate which this Court may deem appropriate.
This Court has issued notice on 22.01.2010 and on 15.02,.2010, this Court has directed the office to place this application along with Company Application No. 14 of 2010.
Company Application No. 24 of 2010 is filed by Textile Labour Association praying for the direction to the Official Liquidator to pay an amount of Rs. 29,65,76,963.95 to the workmen of M/s. New Gujarat Synthetics Company Limited (in Liquidation) as under:
Amount (In Rs.)
3,600 workmen of M/s. New Gujarat Synthetics Company
Limited (in Liquidation) Unit No. 1.
18,49,74,502/-
2036 workmen of M/s. New Gujarat Synthetics Company
Limited (in Liquidation) Unit No. 2.
11,15,62,929/-
Ratilal B. Amin of M/s. New Gujarat Synthetics Company
Limited (in Liquidation) Unit No. 1.
39,530.95
The applicant Association has also prayed for the direction to the Official Liquidator to pay the aforesaid amount to 5043 workers after adjusting the amount which has already been paid to them under the order of this Court. The applicant has also prayed for the direction to pay interest, to make the payment to each of the claimants by A/c. Payee cheque and on identification and verification by the Association and to direct Secured Creditors to submit their claim upto the date of winding up order along with charge certificate issued by the Registrar of Companies, u/s 125 of the Companies Act, 1956 and also to appoint the Official Liquidator to work out the ratio, if required by the Official Liquidator.
This Court has issued notice on 28.01.2010 and on 15.02.2010, it was ordered to be listed along with Company Application No. 14 of 2010.
The brief facts giving rise to all these three Company Applications are that this Court by an order dated 01.09.1989 passed winding up order in Company Petition No. 10 of 1086 and appointed the Official Liquidator attached to this Court with directions to take charge of the assets of M/s.
New Gujarat Synthetics Company Limited and accordingly, the Official Liquidator has taken possession of the entire assets situated at Naroda, Ahmedabad. Thereafter, by an order dated 12.03.1997 passed by this Court in Misc. Civil Application No. 38 of 1991, appointed Sale Committee for disposal of the assets and properties of the Company under the Chairmanship of IIBI and Official Liquidator, Secured Creditors and Workers Union as members of the Sale Committee. By an order dated 30.12.2009 passed by this Court in Company Application No. 505 of 2009, the sale of the assets and properties of the Company situated at Naroda, Ahmedabad was confirmed in favour of Safal Realty Private Limited for Rs. 61 Crores. As per the said order, the auction purchaser was required to deposit entire amount of the purchase consideration on the same day. Accordingly, M/s. Safal Realty Private Limited has made payment of Rs. 61 Crores. Since the entire sale consideration was deposited by the successful bidder, the Official Liquidator has handed over the possession of the assets and properties situated at Naroda, Ahmedabad to the said purchaser.
Since the applicant IDBI had granted various financial assistance to the Company in liquidation and the said financial assistance was secured, inter alia, by first mortgage and charge on all the movable and immovable assets of the Company in liquidation, the applicant is considered to be the Secured Creditor having the first charge on the land and building and plant and machinery of the entire properties of the Company in liquidation situated at Naroda, Ahmedabad. The applicant has already filed its proof of debt with the Official Liquidator. Considering the claim of the applicant along with other Secured Creditors and workers and looking to the availability of the funds with the Official Liquidator, the present application was filed by the applicant.
Pursuant to the notice issued by the Court in the above application, the Official Liquidator has filed his report on 18.03.2010. It is, inter alia, stated in the said report that the workers claim of Unit No. 1 was verified by M/s. Amal Datt & Associates, Chartered Accountant for Rs. 18,49,74,512/- and workers claim of Unit No. 2 was verified by M/s. Haribhakti Shah & Co., Chartered Accountant of Rs. 11,15,62,921/- totalling for an amount of Rs. 29,65,37,433/-. It is, however, stated that the Secured Creditors claims have not yet been invited by the office of the Official Liquidator and hence, the claims of the Secured Creditors are required to be verified by the Chartered Accountant to be appointed from the panel maintained by the Official Liquidator and as may be directed by this Court. After receipt of the report of the Chartered Accountant, ratio would be fixed between the Secured Creditors and workers of the Company in liquidation for final disbursement. The Official Liquidator, therefore, sought the permission of this Court to avail the services of the Chartered Accountant from the panel maintained by the office of the Official Liquidator for verification of the claims of the Secured Creditors and thereafter fixing the ratio between the Secured Creditors and workers of the Company in liquidation for final disbursement. It is further stated that the Official Liquidator wrote a letter on 09.03.2010 to all the Secured Creditors of the Company to file their claims as per prescribed Form No. 66/67 of the Companies (Court) Rules, 1959 along with relevant papers and documents in support of their claim and they have been further requested to furnish necessary documents i.e. copy of ledger accounts, copies of charges certificate, Form No. 8, 13, 17 from Registrar of Companies and certified copies of agreement of hypothecation of assets, copy of Memorandum of Agreement, demand loan agreement, hire purchase agreement etc. immediately to the Official Liquidator, so as to enable him to verify the same and to file appropriate report before this Court. It is further stated that in response to the said letter, SBI vide its letter dated 10.03.2010 submitted its claim of Rs. 23,40,62,139/- without filing affidavit of proof of debt and IDBI vide its letter dated 13.03.2010 submitted its claim amount of Rs. 1,45,06,087/- along with affidavit of proof of debt vide letter dated 04.12.2006.
It is further stated by the Official Liquidator in his report that he has disbursed adhoc payments to the Secured Creditors and Workers of the Company pursuant to the various orders passed by this Court. The details of payments made to Secured Creditors and Workers are as under:
Sr. Order of this Court Unit Unit Name of Amount Amount Amount
No Secured Creditors No.1 No.2 Bank (Rs.) (Rs.) (Rs.)
Workers
O.J. Appeal No.80 of 1998 IIBI IDBI SBI 3,90,401/- 2,99,943/- 1,05,436/-
with 81 of 1998 - order ICICI IFCI 1,05,536/- 70,33,686/- 45,09,000/-
dated 3.11.1998 and
4.11.1998.
(Rs.1500 adhoc per workers)
34,26,000/-
(Rs.1500 adhoc per workers)
C.A. No.362 of 1998 with C.A IIBI 1,60,00,000/- 66,50,000/-
No.356 of 1998 order dated (adhoc) 53,50,000/-
11.12.2001. (adhoc)
C.A. No.79 of 2007 order
dated 16.03.2007. SBI 4,50,00,000/-
C.A. No.237 of 2007 order SBI 1,50,00,000/- 3,00,00,000/- 3,00,00,000/-
dated 12.06.2007
Total (Payments)
8,39,35,002 4,11,59,000 3,87,76,000
Balance remaining to be paid No information 14,38,15,512 7,27,86,921
The Official Liquidator has lastly sought the permission of this Court to invite the claim of the Secured Creditors and workers by issuing public advertisement in two daily newspapers i.e. Gujarat Samachar and Indian Express. The Official Liquidator has also stated that he is having the fund of Rs. 67,66,55,487/- in the Company's account as on 17.03.2010.
On behalf of IFCI Limited, learned advocate Mr. Indravadan Parmar has appeared. IFCI has also filed Company Application No. 17 of
2010. Hence, Mr. Parmar made submissions in both the Company Applications, namely, Company Application No. 14 of 2010 in which IFCI is the respondent No. 3 and in Company Application No. 17 of 2010 in which IFCI is the applicant. He submitted that IFCI Ltd. Is one of the Secured Creditors having first charge over the assets of M/s. New Gujarat Synthetics Company Limited (Unit No. 1) and entitled for its share in undistributed sale proceeds of assets and interest accrued / earned thereon lying with the Official Liquidator. He has further submitted that IFCI
Ltd. Has filed Summary Suit No. 2872 of 1994 against the Company and its guarantors for recovery of the amount of Rs. 95,87,903/- with interest @ 13.5% thereon, costs etc. before the City Civil Court, Ahmedabad which was transferred to Debts Recovery Tribunal, Ahmedabad u/s 31 of the Recovery of Debts Due to Financial Institutions Act, 1993 and renumbered as Transfer Application No. 1191 of 2003 wherein Recovery Certificate had been issued in favour of IFCI Ltd. Since there was some error in the said certificate, a review application was filed for seeking correction in the amount of certificate which is pending before DRT. He has further submitted that while making disbursement of Rs. 79.35 Lacs amongst the Secured Creditors by SBI, sometime in the year 1999, it had excessively appropriated Rs. 70,33,584/- as against its total entitlement of Rs. 3,54,000/- only, leaving receipt of excess amount of Rs. 66,79,584/-. Since the said amount has not been voluntarily returned by SBI, inspite of such fact being known over considerable passage of time, it is required to be recovered with interest immediately for its distribution to other remaining Secured Creditors, who received short payment due to excess appropriation / adjustment of sale consideration by SBI. He has further submitted that the affidavit of proof of debt is filed by IFCI Limited with the Official Liquidator on 20.05.2010 and copy thereof is placed on the record of these proceedings. As per the affidavit of proof and summary of statement of outstanding dues as on 01.09.1989, the total outstanding amount comprising of principal amount of Rs. 35 Lacs and interest and other charges of Rs. 16,14,515/-, total comes to Rs. 51,14,515/-. Out of interim disbursement made by this Court, a sum of Rs. 19,40,930/- was received by IFCI Limited out of sale proceeds of assets of the Company in liquidation.
On behalf of Textile Labour Association, learned advocate Mr. D.S. Vasavada has appeared in Company Application Nos. 14 & 17 of 2010 wherein Textile Labour Association is respondent No. 5 and in Company Application No. 24 of 2010 wherein Textile Labour Association is applicant. He has submitted that after the winding up order was passed on 01.09.1989, the Textile Labour Association lodged a claim by filing Company Application No. 362 of 1998. The Official Liquidator on 09.03.2000 filed his report in Company Application No. 362 of 1998 and reported to the Court that as per the guidelines issued by this Court in Company Application No. 362 of 1998, by judgment and order dated 12.05.1999, 3006 workmen of the Unit No. 1 are eligible to receive an amount of Rs. 18,49,74,152/-. He has further submitted that since the Company had two manufacturing Units, another Company Application was filed being Company Application No. 356 of 1998. The Official Liquidator has submitted his report before the Court to the effect that 2036 workmen are eligible to receive an amount of Rs. 11,15,62,921/-. The said report was accepted and the Secured Creditors have also not raised any objection to the said report. He has further submitted that one Mr. Ratilal Amin also filed an application being Company Application No. 471 of 2007 in which he had lodged the claim of unpaid gratuity to the tune of Rs. 39,539.95/-. This Court has accepted the said claim on 24.10.2007. Thus, in all, 5043 workmen of both the Units are eligible to receive an amount of Rs. 29,65,76,963.95.
Mr. Vasavada further submitted that earlier an amount of Rs. 8.50 Crores was paid to the workmen. Thereafter, since the land of Unit No. 2 was sold and since the Official Liquidator was having the fund of more than Rs. 19 Crores on 16.03.2007, this Court directed payment of Rs. 9 Crore in the first instance and thereafter on 12.06.2007, a further sum of Rs. 1.5 Crore instead of Rs. 4.5 Crore was ordered to be disbursed by this Court. He has further submitted that thereafter this Court has confirmed the sale of the assets of the Company in liquidation by an order passed in Company Application No. 505 of 2009 and the successful bidder has already paid an amount of Rs. 61 Crores. Thus, as per the information available with the Textile Labour Association, as on today, an amount of more than Rs. 71 Crores is lying with the Official Liquidator.
Mr. Vasavada has further submitted that as per the calculation made by the Textile Labour Association, an amount of 28.08% of the total dues has already been paid to the workmen of both the Units. In view of the fund position available with the Official Liquidator, workmen should be paid the rest of the amount in full by A/c. Payee cheque and on identification and verification by the Textile Labour Association only.
He has further submitted that the disbursement by electronic media or by ECS would create many problems as in the case of Ambica and Calico Mills Limited, the disbursement orders were passed in September 2009. Diwali was falling in October 2009 and despite that, more than 75% of the claimants did not receive the payment till November, 2009 end. He has, therefore, submitted that ECS or electronic media mode may be utilized only if the payment is credited in the respective account of the claimant within one or two days. Such system is absolutely useless and cannot be pressed into service for the simple reason that there is no infrastructure available with the Official Liquidator for disbursement of the amount through electronic media mode.
Mr. Vasavada has further submitted that so far as the Secured Creditors are concerned, as per the information available with Textile Labour Association, they do not have charge over the land. Only SBI has the charge over the land and the rest of the Secured Creditors have no charge over the land. He has, therefore, submitted that all the Secured Creditors should be directed to produce the Charge Certificate indicating and providing that the charge is registered u/s 125 of the Companies Act, 1956. He has further submitted that after submission of the charge certificate by the Secured Creditors and their due amount as on the date of the winding up order, the Chartered Accountant should be directed to submit his report for working out the ratio. He has further submitted that looking to the report filed by the Official Liquidator, if the full amount is directed to be paid to the workers for the time being, then in that case, no prejudice would be caused to the Secured Creditors.
On behalf of SBI, learned advocate Mr. R. M. Desai has appeared. On behalf of SBI, two affidavits are filed, one dated 20.03.2010 and the second one dated 12.07.2010. Based on the first affidavit, Mr. Desai has submitted that IDBI, the applicant of Company Application No. 14 of 2010 is not a Secured Creditor in respect of the property which is sold and amount is realized. The said applicant has not produced any document by which it can be established that the charge has been created in favour of the said applicant. Since the said applicant being not a Secured Creditor, the question of distributing any amount to the said applicant does not arise. He has further submitted that so far as immovable properties of the Company in liquidation are concerned, SBI is the only Secured Creditor. So far as plant and machinery situated at Naroda was concerned, IDBI, ICICI, IFCI & IIBI had charge ranking pari-pasu. When the said plant and machinery were sold, issue as regards distribution was discussed and ratio was worked out by the Liquidator for distribution amongst Secured Creditors and the report to that effect was submitted by the Official Liquidator before this Court which is produced in Company Application No. 24 of 2010. The said ratio has been accepted and acted upon by IDBI and other financial institutions as evident by accepting the amount as per ratio without raising any objection. He has further submitted that if IDBI and other financial institutions produce decree of the competent Court and establish that they are Secured Creditor, out of the amount coming to the share of Secured Creditor, on the basis of ratio being worked out between Secured Creditors and workers, entitlement of IDBI, IIBI, IFCI & ICICI will be 11.36% only and the Liquidator may be directed to keep apart the said amount.
On the basis of the affidavit dated 12.07.2010, Mr. Desai has submitted that IFCI is not a Secured Creditor as the suit was filed by IFCI only against the guarantors and not against the Company in liquidation. So far as the financial assistance by the financial institutions is concerned, IIBI was a lead institution. IIBI has filed its proof of debts. However, neither IIBI nor IDBI and/or IFCI has produced certificate of registration of charges created in favour of financial institutions. In the minutes of the meeting produced by IFCI at page 71 of the compilation, details regarding shares of financial institutions are given. So far as the share of SBI is concerned, it is shown as 4.46%. This is mere jugglery of amount and nothing
else. When the claim of SBI is exceeding Rs. 10 Crores, how the share of SBI can be 4.46% only. In the report filed by the Official Liquidator, share of SBI is stated to be 88.64%. This would establish the fallacy of the calculation and demand made by IDBI & IFCI and other financial institutions. Mr. Desai has, therefore, denied that SBI has been paid any excess amount as alleged.
On behalf of Kotak Mahindra Bank Limited, learned advocate Mr. N. K. Pahwa has appeared. An affidavit of proof is filed on 07.07.2010.
Based on the said affidavit, Mr. Pahwa has submitted that Kotak Mahindra Bank Limited is an assignee of ICICI Bank Limited who has assigned the debt payable by the Company in liquidation to Kotak Mahindra Bank Limited vide Deed of Assignment dated 29.09.2004. In addition to this, the parties have executed a supplementary bill dated 12.05.2005. On the date of liquidation of the Company, the said Company was indebted to ICICI since erstwhile of IDBI Limited (IDBI), IFCI Limited (IFCI), IIBI Limited (IIBI) and ICICI had sanctioned various financial assistance to the Company in liquidation. It had, inter alia, executed Joint Deed of Hypothecation dated 05.06.1986 in favour of ICICI for term loan of Rs. 50
Lacs. A Memorandum of Entry dated 19.05.1987 evidencing mortgage by deposit of title deed relating to the immovable property of the Company in liquidation with State Bank of India, acting for itself and as an Agent of ICICI, IDBI, IFCI & IIBI. He has further submitted that as on the date of order for winding up, the Company in liquidation was indebted to ICICI for an amount of Rs. 38,23,024/-. ICICI has received Rs. 12,07,490/- towards adhoc distribution of sale proceeds of the assets of the Company in liquidation. He has, therefore, submitted that the balance amount may be directed to be paid to Kotak Mahindra Bank Limited.
Having heard learned Counsels appearing for the parties and having considered their rival submissions in light of their respective claims, fund position, as indicated by the Official Liquidator and the report of the Official Liquidator, the Court is of the view that as on today the Official Liquidator is having more than Rs. 67 crores in the account of the Company in liquidation and even if the dues of the secured creditors and workers are paid in full still there will be left a very substantial amount for making payment to the creditors u/s 530 of the Companies Act, 1961 and even to some extent to the unsecured creditors. The only difficulty is that though the claim of the workers has been verified by the Chartered Accountant the claims of secured creditors are still not verified and the exact ratio between the secured creditors as well as workers has still not been worked out. The Official Liquidator has not invited claims nor the complete details with regard to their dues have been furnished by the secured creditors. There is some dispute with regard to registration of charge which the secured creditors have over the assets of the company in liquidation. There is also dispute with regard to the first charge and second charge of the secured creditors over the assets of the Company in liquidation. It will take considerable time to resolve all these disputes and till such disputes are resolved the funds should not lie idle. Partial disbursement was made earlier. The Official Liquidator has given the figures of partial disbursement in his report dated 18.3.2010. So far as details available on record, the claims of the secured creditors and workers are also to the extent possible, known to the Official Liquidator and to the
Court. Considering this aspect and subject to the final verification after inviting the claims, further disbursement can be made so as to make use of the funds by the secured creditors and by the workers.
In the above view of the matter, the Court issues following directions for the purpose of further disbursement of the amount in favour of the workers and secured creditors:
The claims of the workers as indicated in Company Application No. 24 of 2010 are to the extent of Rs. 29,65,76,963.95, for both the units of New Gujarat Synthetics Co. Ltd., (in liquidation). Out of the claim of Rs. 18,49,74,502 of 3006 workmen of Unit No. 1 an amount of Rs. 4,11,59,000 is already disbursed. The balance amount to be disbursed is of Rs. 14,38,15,512. In addition to this, an amount of Rs. 39,530.95 is also to be disbursed in favour of Shri Ratilal Bhulabhai Amin, a worker of Unit No. 1. So far as Unit No. 2 is concerned, the total claim of 2036 workmen is to the extent of Rs. 11,15,62,929. Out of which an amount of Rs. 3,87,76,000 is already disbursed. The balance amount to be disbursed is of Rs. 7,27,86,921. The Official Liquidator is, therefore, directed to disburse this balance amount to workers of Unit Nos. 1 and 2 by banker's cheque or demand draft in favour of the concerned workmen after opening Dividend Account in any Nationalized Bank and on proper identification by the Union and having obtained necessary proof of their identity. A question was raised by Mr. Vasavda that the disbursement by electronic media or by ECS would cause hardship to the workers and even the workers will have to spend some amount for getting credit of the amount. It is, however, assured by the Official Liquidator that the Bank would not charge any amount and the amount would be credited very speedily in respective accounts of workers. The Official Liquidator is directed to see that no undue hardship would be caused to any worker and the amount may be received by them as expeditiously as possible.
So far as dues of IDBI are concerned, the total claim of IDBI is of Rs. 1,45,06,087, out of which as per the report of the Official Liquidator IDBI was paid Rs. 2,99,943. It is the say of Mr. B.H. Bhagat, learned advocate appearing for IDBI, the applicant of Company Application No. 14 of 2010 that the proof of debt has already been filed with the Official Liquidator and copy thereof is also placed on record of this Court. A dispute is, however, raised to the effect that the charge on the assets of the company in liquidation was not registered. This aspect will have to be verified by the Official Liquidator and the Chartered Accountant when the matter is referred to him after inviting claims. However, since the adequate balance is available with the Official Liquidator and since proof of debt is already furnished, the Official Liquidator is directed to disburse an amount of Rs. 1,45,06,087 after deducting the amount of Rs. 2,99,943 which is already disbursed and after obtaining an usual undertaking from
IDIBI.
So far as IFCI is concerned, the dues outstanding as on the date of winding up are to the tune of Rs. 51,14,515, out of which as per the proof of debt filed by IFCI, an amount of Rs. 19,40,930 has already been received out of sale proceeds of assets of Company in liquidation. Though the Official Liquidator in his report has only mentioned figure of Rs. 1,05,536. After necessary verification and after obtaining an usual undertaking, the balance amount shall be paid to IFCI.
As far as State Bank of India is concerned, total claim of State Bank of India is to the tune of Rs. 24,39,62,139.32. The decree was, however, passed by DRT on 18.9.2007 for an amount of Rs. 10,30,77,000. During the pendency of proceedings before DRT the State Bank of India has received an amount of Rs. 7.06 crores from State Government who had executed sovereign guarantee in favour of State Bank of India.
A dispute was raised that while disbursing the amount in favour of State Bank of India towards its claims the amount received from the State Government should be deducted first and only the balance amount should be paid to State Bank of India. As per the report of the Official Liquidator, State Bank of India has already been paid Rs. 6,70,33,686. If the total amount received from the State Government and from the Official Liquidator is considered the State Bank of India is liable to refund the excess amount. As against this, the argument of Mr. Desai appearing for State Bank of India is that on receipt of decreetal amount from the Official Liquidator, the State Bank of India will have to refund the amount received from State Government and hence the claim of State Bank of India is not required to be reduced to this extent. Even DRT while passing the decree has also indicated that the amount received from the State Government cannot be deducted from the adjudicated amount. In this view of the matter and in view of the statement made by Mr. Desai, without deducting the amount of Rs. 7.06 crores received from State Government, the Official Liquidator shall disburse the balance amount in favour of State Bank of India after considering the amount of Rs. 6,70,33,686 which is already disbursed earlier and after obtaining an usual undertaking from State Bank of India.
So far as Kotak Mahindra Bank Ltd. is concerned, an affidavit of proof of debt is filed on 7.7.2010 before the Court. It is revealed from this affidavit that ICICI has assigned its debt to Kotak Mahindra Bank Ltd., and company in liquidation was indebted to ICICI for an amount of Rs. 38,23,024. Out of which, ICICI has already received an amount of Rs. 12,07,490 towards ad-hoc distribution of sale proceeds of the assets of the Company in liquidation. The Official Liquidator has, however, mentioned this figure at Rs. 1,05,436 in his report. After proper verification and after obtaining an usual undertaking from Kotak Mahindra Bank Ltd., the balance amount shall be disbursed in favour of Kotak Mahindra Bank
Ltd. This disbursement is, however, subject to the final decision of the Apex Court on the issue regarding assignment of debt.
30 The above directions are issued by the Court considering the claims made before the Court and the facts and figures available on record. This may not be, however, treated as final. The Official Liquidator shall issue the public advertisement in two public newspapers, namely, "Gujarat Samachar" Gujarati script, Ahmedabad Edition and "Indian Express" English script, Ahmedabad Edition for inviting claims of the workers, if any, and secured creditors, statutory creditors u/s 530 of the Act and on receipt of the claims from the workers, if any and secured creditors, along with claims of secured creditors which are already received by him, he shall forward the said claims to the Chartered Accountant duly appointed from amongst the approved panel, for proper verification and also for determination of the ratio inter-se amongst the secured creditors and also between secured creditors and workers. On receipt of the report from the Chartered Accountant, the further report shall be filed before the Court seeking appropriate direction for further disbursement, if any.
The Official Liquidator shall see to it that the disbursement of the amount as directed above shall be completed within one month from today and inviting claims, and referring those claims to the Chartered Accountant for verification and submission of his report before the Court shall be completed within three months from today.
The undertaking to be obtained from the secured creditors must clearly indicate that if they are required to repay the amount in case any claim is lodged against them and accepted by the Court or in case if it is found that excess amount is paid to them they will be required to refund the amount at the prevailing rate of interest. The report of the Chartered Accountant shall also indicate as to whether a particular secured creditor is having first or second charge over the assets of the Company and whether that charge has been registered with the Registrar of Companies. Based on this finding and after considering the settled legal position in this regard the Chartered Accountant shall verify the claim of the secured creditors and also determine the ratio accordingly.
With these directions and observations all these three Company Applications are accordingly disposed of.