Home Case Index All Cases Companies Law Companies Law + HC Companies Law - 2010 (7) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2010 (7) TMI 826 - HC - Companies LawWhether the applicant is an unsecured creditor and thus, it is required to lodge its claim before the official liquidator for adjudication ? Whether the DRT under the RDB Act, will have the jurisdiction in respect of the proceedings initiated by the applicant, though secured assets were put to sale by PSIDC prior to the order of the winding up ? Whether the proceedings before the DRT are in respect of the money realised by the secured creditors ? Whether the claim of the applicant being a secured creditor, is subject to the rights of the other secured creditors including the claim of the workmen under section 529A of the Companies Act, 1956 ? Held that:- After sale the money realised by the sale of the secured assets would continue to be security against which a secured creditor can proceed and realise its dues. The sale proceeds is the cash worth of the security of the assets. Therefore, the act of sale of the secured assets will not render a secured creditor as an unsecured creditor. It has been held that it shall be necessary for the Tribunal to decide the question of priority by keeping in mind the principles underlying section 73 of the Code of Civil Procedure. It has been further held that under section 73 of the Code of Civil Procedure, sharing of the sale proceeds is permissible only if the person seeking such share has obtained a decree or an order of adjudication from the Tribunal and also complied with other conditions laid down under section 73 of the Code of Civil Procedure. The contention of Shri Kansal is wholly misconceived. The discussion in the aforesaid paras is in respect of the facts of the case. Allahabad Bank, as an unsecured creditor, has sold property of the company on the strength of a money decree obtained from the DRT. The question of appropriation raised was in respect of the said sale consideration. Therefore, the contention that the Tribunal has jurisdiction only in respect of the money realised, is untenable. The applicant is a secured creditor, who has opted to stand outside the winding up. The secured assets have been put to sale by the PSIDC including the assets secured in favour of the applicant. Therefore, the applicant is entitled to recover the amount of ₹ 1,41,83,391.33 with pendente lite and future interest at 9 per cent per annum till actual recovery, as found by the DRT and modified by the DRAT, from the sale proceeds lying in deposit with PSIDC. However, such entitlement is subject to the right of the claim of the workmen under section 529A of the Companies Act, 1956, as and when adjudicated upon by the official liquidator. The present application is allowed and the applicant-bank is found entitled to recover the amount of ₹ 1,41,83,391.33 with pendente lite and future interest at 9 per cent per annum till recovery, in terms of the order passed by the DRT.
|