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Eleganza Furnishings Private Limited, The Bank of New York Mellon, London Branch Versus The OL of Zenith Infotech Limited

2015 (10) TMI 758 - BOMBAY HIGH COURT

Payment of License Fees post Winding Up – Appellant demands from Official Liquidator to vacate and/or shift goods and materials of the Respondent – Payment of arrears of License fees is also sought till the possession of the premises – OL of the Respondent contends that he may either dispose of the movables by public auction or shift the furniture, fixtures and records lying within the premises to another property of the Company – Respondent opposes the Applicant’s prayer for payment of arrears .....

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over possession of the premises after adjusting the security deposit held by the Applicant is ordered – Decided in favour of the Applicant. - Company Application (L) No. 98 of 2015, Company Petition No. 28 of 2012 - Dated:- 26-8-2015 - S. C. Gupte, J. For the Applicant : Ms. Rita Yadav, Mr. Divij Kishore, i/b. AZB & Partner For the Respondent : Ms. Pratibha Ramaswamy, Assistant OL present ORDER P. C. The Company Application is for direction to the Official Liquidator to vacate and/or shift .....

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₹ 24,425/per month. The Respondent Company kept a deposit of ₹ 72,675/with the Applicant as and by way of security deposit for fulfillment of the terms and conditions of the licence agreement. It is the Applicant's case that the Official Liquidator, who is in possession of the premises as a liquidator of the Respondent Company, does not require the premises for beneficial winding up and should be asked to handover vacant and peaceful possession thereof to the Applicant after remo .....

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icence fees to the Applicant. Learned Counsel for the petitioning creditor opposes the Applicant's prayer for payment of arrears of licence fee. He submits that as far as the arrears are concerned, the Applicant, as unpaid licensor of the Company in liquidation, is really in the position of an unsecured creditor and cannot get any priority in payment over the secured creditors and workmen. Learned Counsel relies upon the judgments of the Supreme Court in the case of Official Liquidator of Hi .....

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balance, if any, after such adjustment, it is an unsecured creditor and must avail its turn in liquidation for recovery of its dues in accordance with the law of priorities of debts in liquidation. But if, in the course of winding up, that is to say, after the passing of the winding up order but before the Company is actually wound up, the Official Liquidator requires and uses the premises for beneficial winding up, the licence fees payable during the period of such beneficial use must rank as l .....

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that is to say, entirely for a period after the winding up order. It is not disputed by the Official Liquidator that all throughout this period, during which the Liquidator was in possession thereof, the premises were required to store the movable assets of the Company so as to enable the Liquidator to make a valuation and bring the same to sale with a view to accomplish administration of assets in winding up. In other words, it is not in dispute that for the period for which the licence fees ar .....

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th respect to the estates of persons adjudged insolvent; that the rule enacted in Section 46 of the Provincial Insolvency Act, thus, should apply, and when there are mutual dealings between the creditor and the Company, only that amount which is due at the foot of the account of such mutual dealings would be recoverable. It cannot be said that the amount due from the creditor to the Company should be recovered in full, whilst the amount due to him should rank in payment after the preferential cl .....

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al payment which comes under liquidation expenses, there is no difficulty in allowing the Applicant to retain the deposit and adjust it towards the arrears and pay the balance of arrears to the Applicant. 8. Learned Counsel for the Petitioner relies on the decision of Delhi High Court in Amersey Industries' case (supra). Relying on this decision, learned Counsel submits that as far as the security deposit is concerned, since there is no case for adjustment of it towards arrears arising for a .....

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