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TMI Blog2013 (10) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... from Koshika Telecom Limited with the Official Liquidator. 2. The facts pertinent to the present Appeal are that the Appellant, M/s IFCI Limited is a public financial institution which had provided loan and granted other facilities to the Respondent/Company to enable it to set up its telecom business. The two Directors of the Company also gave personal guarantees. Apart from the aforesaid, the microwave tower and other movable assets owned by the Respondent/Company were hypothecated with the Appellant. Since the Respondent and the guarantors failed to repay the loan amount, the Appellant filed an Original Application before the concerned Debt Recovery Tribunal being OA No. 148/2002 for recovery of the debts due to the Appellant. The afore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Debt Recovery Tribunal vide its order dated 25.7.2008. An appeal from the order of the Debt Recovery Tribunal was thereafter preferred to the Debt Recovery Appellate Tribunal. However, the said appeal was disposed of on 5.11.2008 in terms of the compromise arrived at between the parties during the pendency of the appeal. Thereupon, the properties of the Respondent Company were sold in auction by the Recovery Officer. The Appellant filed an application before the Recovery Officer praying that the proceeds realized from the sale of the assets to the tune of approximately Rs. 12 Crores be allowed to be appropriated by the Appellant. By an order dated 22.2.2010, the Recovery Officer allowed the said application relying upon the judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reditors would rank pari passu with that of the Appellant Corporation to that extent and claim of workmen would first have to be satisfied and the Appellant Corporation would abide by the undertaking given on its behalf before the DRT as well as this Court on 28.7.2010. It may be noted at this juncture that the order dated 28.7.2010 records the concession of learned senior counsel for the Appellant Corporation that there was no dispute with the proposition that the Appellant is not a secured creditor qua the amount realized from sale of immovable properties and thus the lien of employees would have precedence and if there was any other unsecured creditor, whose claim is verified, the claim of the Petitioner Corporation would be pari passu w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Appellant to remit the same, no reply or response had been received till date. 5. The Appellant Corporation filed a reply to the said application stating that the same was not maintainable and liable to be dismissed for the reason that while deciding W.P.(C) No.5014/2010 filed by the Appellant, a Division Bench of this Court had held that the Appellant was entitled to retain the amount realized against the sale of immovable properties till the time the claims of other unsecured creditors were verified. It was further stated that in any event the Appellant Corporation was not liable to deposit the entire sale proceeds with the Official Liquidator till the time the claims were verified. After considering the reply filed by the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he application so that payments could be made to all the unsecured creditors in accordance with law. The application is accordingly disposed of." 6. Before this Court also, the learned counsel for the Appellant Corporation has strongly relied upon the orders of the Division Bench dated December 6, 2010 passed in the aforesaid writ petition. After going through the said orders, we are not inclined to agree with the Appellant's counsel for the reason that the aforesaid orders were passed by the Division Bench after noting that no unsecured creditor had come to light despite advertisement having been issued by the OL. As things stand, the OL has issued a second advertisement and claims of at least six other creditors have been filed with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration which is a public financial institution to the extent of sale realization from the immoveable properties in respect of which the petitioner-Corporation is not a secured creditor, but no other claims have been verified to show that there are other unsecured creditors or claim of workmen which is yet to be satisfied. The amount realized from sale of both moveable and immoveable assets is not even fraction of the amount which is due to the petitioner under the decree. 11. The function of the OL is only to ensure that the claims of secured creditors are satisfied to the extent it can be and unsecured creditors get the remaining amount pari passu. No such unsecured creditor has come to light despite an advertisement being issued. The OL ..... X X X X Extracts X X X X X X X X Extracts X X X X
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