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Judgment
Bhargav D. Karia, J
Heard learned Advocate Ms. Sangeeta Pahwa for M/s. Thakkar and Pahwa Advocates for the applicant and learned Advocate Mr. Pathik M. Acharya for the Official Liquidator.
This Court passed the following order on 26.04.2019 :-
"1. Two fold grievances are made in this application being (1) that the applicant is entitled to receive the interest for a period of about four years between the date of the order of disbursement i.e. 23.02.2012 till the actual date of disbursement and (2) On correct application of ratio i.e. 45.61%, the applicant is entitled to sum of Rs. 1,99,80,030/- instead of Rs.1,90,31,736/- which has been paid to the applicant.
Apropos the first grievance, it is noticed that the order dated 23.02.2012 passed in the Company Petition bounded the secured creditors including the applicant herein with the specified undertaking particularly to secure the interest of the Income Tax Department. The said order was challenged unsuccessfully though in appeal and eventually the condition requiring filing of the aforementioned undertaking was retained when the order dated 15.02.2016 came to be passed in Misc. Civil Application (OJ) No.65 of 2012. It was observed in the said order thus :
"15. In view of the fact that now the applicant bank has tendered affidavit/ undertaking in compliance of paragraph No.21(J) dated 15.2.2016 the official liquidator shall take necessary steps, provided that undertaking according to clause 21(F) and (G) are filed as mentioned in the order dated 23.2.2012 which are required to be taken as expeditiously as possible and preferably within 2 weeks."
Thus, the obligation to file an undertaking as contained in the original order was retained finally and was never stayed. Needless to say that in absence of the undertaking, the official liquidator was not obliged to disburse the amount to the applicant. Therefore, no liability was incurred by the Official Liquidator for not disbursing the money to the applicant. No right to the applicant accrued to claim interest on the mere ground that the applicant was pursuing the remedy against the order obliging him to file the undertaking as above. Thus, no case for interest for the so called delayed period is made out.
So far as the difference on account of miscalculation as contended by the applicant is concerned, the official liquidator will look into the same and file the report by 12.06.2019.
Stand over to 12.06.2019."
It appears that thereafter, the Official Liquidator has filed a report with regard to the applicant pointing out the difference of not paying Rs.9,48,293/-, between Rs.1,99,80,030/- being 45.61% of Rs.4,38,06,248/- and actual payment of Rs.1,90,31,736/-. It is pointed out by learned Advocate Mr. Pathik M. Acharya for the Official Liquidator that as per the order dated 23.02.2012 passed by this Court in Company Application No.24/2012, the Official Liquidator was directed to set aside Rs.17.75 Lakhs comprising of Rs.16.70 Lakhs for workers, Rs.1.05 Lakhs for public advertisement charges and additional charge of Rs.50,000/- for meeting with the contingency expenses. The Official Liquidator therefore, disbursed the amount to various secured creditors as under :-
Sr. No.
Particulars
Ratio (in %)
Amount Released as per order (in Rs.)
1.
Kotak Mahindra Bank
45.61
1,90,31,736/-
2.
IDBI Bank
36.53
1,52,42,914/-
3.
IFCI
17.86
74,52,462/-
4.
Workers (set aside)
17,75,000/-
5
Contingency charges (set aside)
50,000/-
Total
100%
4,35,52,112/-
In view of the above facts stated in the Official Liquidator Report, it would be in the interest of secured creditors of the company in liquidation to direct the Official Liquidator to call for the meeting of the secured creditors for further disbursement of the outstanding dues to the secured creditors. The Official Liquidator is therefore, directed to call for the meeting of the secured creditor for further disbursement of the amount lying in the account of the company in liquidation within four weeks from today and file an Official Liquidator Report to that effect on the decision arrived at by the secured creditors for disbursement of the amount lying in the account of the company in liquidation so as to pass further orders by this Court for disbursement.
In view of the above, this Company Application is disposed of with the aforesaid direction.