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TMI Blog2015 (4) TMI 886X X X X Extracts X X X X X X X X Extracts X X X X ..... p the company's financial position. Syndicate Bank and Indian Overseas Bank thus invested further sums approximately Rs. 4.68 crores on condition that they would have pari-passu charge covering the further financial support that the other financial institutions should have agreed. The BIFR accordingly approved the scheme. Syndicate Bank would claim, they registered the charge covering the increased financial support that they gave to the company. The company also agreed to such proposal of the Bank, Bank accordingly registered its charge with the Registrar of Companies covering their increased financial stake. The company ultimately did not survive. This Court passed an order of winding up on July 16, 1997. The Syndicate Bank also obtained a decree from the Debt Recovery Tribunal of Delhi to the extent of Rs. 28,35,31,238/- along with the interest at the rate of 11 per cent per annum. The Official Liquidator sold the assets of company for a sum of Rs. 4.01 crores. The present dispute would start from there. Official Liquidator invited claims from the creditors. By an order dated November 30, 2007, the Official Liquidator admitted the claim of the Bank to the extent of Rs. 15,46,60, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated April 6 and 30, 2010. The learned Company Judge again set aside the order of rejection and directed reconsideration upon due notice to the parties. The matter went back to the Official Liquidator, the Official Liquidator once again rejected the claim of the Bank vide order dated April 22, 2013 appearing at page 361-363 of the paper book. The reasoning was all the more same. Significant to note, although the Official Liquidator was having a consistent view on the priority to the extent of Rs. 20 lakhs, they paid nothing to the Syndicate Bank, despite substantial payments made to the other secured creditors. The discriminatory treatment is apparent on the face of the record. We wonder, how a public authority acting under the supervision of the Court could do so. The Bank challenged the same before the learned Judge. The learned Judge upheld the rejection vide order dated April 2, 2014 appearing at page 15-23 of the paper book that became the subject matter of the present appeal at the instance of the Bank. THE JUDGMENT AND ORDER IMPUGNED: Before the learned judge, according to the Bank, although they were having the pari-passu charge to the extent of Rs. 20 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extent of Rs. 1.84 crores. Even then, no payment was made although the other secured creditors were duly paid on ad hoc basis. He would refer to page 318 where the Official Liquidator in the changed circumstances admitted Rs. 1.30 crores and suggested payment of Rs. 48,11,535/- that also the Official Liquidator did not pay. Pertinent to note, such suggestion was made on March 10, 2010 after the order dated January 15, 2010 was passed. He would put his emphasis on his letter dated September 24, 1991 written by IFCI according their consent in having the charge recorded pari-passu. He would contend, once they gave their consent, there was no occasion to take any further step in the matter at least, IFCI or its group members would be precluded from questioning the authority of the Bank to claim security pari-passu on the extended financial support. He would submit, pursuant to the order of the BIFR, Bank changed its status and acted upon the said order. Hence, they could not be denied the proportionate reimbursement. He would submit, he was already handicapped because of the indifferent treatment on the part of the Official Liquidator. Despite repeated requests, the Official Liquidato ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate appearing at page 297 would ad best support his claim to the extent of Rs. 4.99 crores approximately. The letter dated September 24, 1991 clearly recorded, the other financial institutions agreed to have pari-passu charge for the additional loan of Rs. 25 lakhs and working capital loan of Rs. 173.41 lakhs in favour of the Syndicate Bank. The relevant extract is quoted below: "The mortgage and charge of IFCI, IDBI, ICICI, IRBI and LIC shall in all respects rank pari-passu with the mortgages and charges created/ to be created by the Company in favour of Syndicate Bank in respect of its term loan of Rs. 20 lakhs, additional loan of Rs. 25 lakhs and working capital tem loan of Rs. 173.41 lakhs and in favour of Indian Overseas Bank in respect of additional term loan of Rs. 17 lakhs and working capital term loan of RS. 93.16 Lakhs including any bridging loan(s)/ interim disbursement(s) interim loan(s) together with interest thereon and other monies payable by the Company to you under your Loan Agreements/Letter of Sanction etc. for all purposes and to all intents." In the later part of the said letter, the financial institutions also agreed, undertook and confirmed that they would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, to deny the claim of Syndicate Bank. We would hold, even if there was no proper compliance of Section 48 the respondents were precluded from taking such plea while denying the claim of the Bank. We would direct the Official Liquidator to consider the Certificate of Mortgage treating the same as a valid one to the extent of Rs. 4.98,79,497.03 paisa as appearing at page 298 of the paper book and determine and adjudicate the claim of the Bank and pay them forthwith. Before parting with, we would be failing in our duty if we do not draw attention of the learned Company Judge as to the functioning of the Official Liquidator as observed herein before. They were not acting in impartial manner. In course of hearing, we adjourned the matter and directed the Official Liquidator to pay, whatever according to them would be payable to the Bank. We directed so when we noticed, others were paid in ad hoc to the total exclusion of the Syndicate Bank. Official Liquidator paid only poultry a sum of Rs. 8 lakhs. When we asked Mr. Tilak Bose to explain, he would contend, in absence of appropriate papers, the Official Liquidator could not calculate the interest over the claim amount and thus they ..... X X X X Extracts X X X X X X X X Extracts X X X X
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