TMI Blog2016 (7) TMI 643X X X X Extracts X X X X X X X X Extracts X X X X ..... e same would apply to purchaser as and when he becomes consumer of the electricity Company. So on both the counts, the applicants are not entitled to say that in the advertisement itself, it is required to be mentioned that some amount is due and payable towards electricity charges to the applicants – electricity Companies. It is not the case of the applicants that they have any other additional or special right as far as the amount of due is concerned and therefore, the applicants have no right to insist that there has to be inclusion of their debts as part of the advertisement for sale proclamation. In opinion of this Court, on the contrary the applicants are required to lodge their claim before the Official Liquidator in accordance with the provisions of the Act and Rules. As far as applicability of Supply Code, more particularly clause 4.1.11 of the Regulation is concerned, the same would be a case between intending purchaser and the electricity Company and therefore, the Official Liquidator is not duty bound to bring to the notice of the purchaser and/or auction purchaser of the Company (in liquidation) that there is outstanding dues of the electricity Company along with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utstanding dues of Torrent Power Ltd. From the concerned Company then Torrent Power Ltd. Would not provide electric connection at the same premises unless and until such outstanding dues, together with interest thereon at the rate of 15% per annum as on date of payment, are fully paid to Torrent Power Ltd. (c) to issue ad-interim directions in terms of paragraph 6(a) and 6(b) above, pending the hearing and final disposal of this application (d)***. 3. Whereas Company Application No.146 of 2015 is filed by the applicant viz. Paschim Gujarat Vij Company Ltd., wherein it has prayed as under:- A. Your Lordships be pleased to direct the Official Liquidator to lodge the claim of the applicant Company to the tune of ₹ 38,76,27,154/- crores. B. Your Lordships be pleased to direct the respondent Official Liquidator to inform all the probable bidders about the pending dues of the applicant company. C. ***. 4. Heard Mr.K.B.Pujara, learned counsel for the applicant in Company Application No.5 of 2011 and Mr.Rituraj M. Meena, learned counsel for the applicant in Company Application No.146 of 2015, Ms.Amee Yajnik and Mr.J.S.Yadav, learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regards the dues of the applicant Company. 8. Learned counsel for the applicant further submitted that vide further communication dated 04.12.2010, the applicant requested the Official Liquidator to inform the intending purchaser/auction purchaser about the dues of two service connections bearing Service No.HT-39 and Service No.HT-266 and also further informed that the applicant Company will not provide electricity in the same premises unless and until the outstanding dues, together with interest thereon at the rate of 15 % per annum as on date of payment, is not fully paid up to the applicant and as no steps were taken thereafter, present application is filed. 9. Learned counsel for the applicant contended that the prayers prayed for by the applicant in Judge's Summons are innocuous prayers and in view of the amendment made in supply code, learned counsel for the applicant submitted that, even if, the property is disposed of, new purchaser will have to clear all outstanding dues of the erstwhile owner, then and then only he would be granted new connection. 10. It was further submitted that the Official Liquidator has wrongly relied upon the order of this Court passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l creditors and the advertisement, which is published, is given as per the terms and conditions fixed by this Court and therefore, no preferential treatment can be given to the applicants. It was thus contended that the applicants have no locus. 15. Mr.J.S.Yadav, learned counsel for the Official Liquidator has submitted that the present applications are unique applications made for the first time by the creditors and it is not filed as provided under the Act or the Companies (Court) Rules, 1959 (hereinafter referred to as the Rules for short) . It was further contended that the prayers prayed for in both applications are completely contrary to the provisions of the Act and the Rules. It is the duty of the Official Liquidator to publish an advertisement inviting different category of claims under Sections 429, 429A and 530 of the Act after obtaining permission as provided under Rule 149 of the Rules. It was further contended that no provisions of the Act or Rules provide that such clarification/mention is required to be made in the advertisement. It was also contended that the amendment made by G.E.R.C. in clause 4.1.11 is not applicable to the Company (in liquidation) and ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned counsel for the respective parties. 19. Upon considering the submissions made by learned counsel for the parties and on perusal of the record of these applications, the applicants - Electricity Companies, who supplied the electricity to their respective customers namely Ahmedabad Manufacturing and Calico Printing Mills Company Ltd. , and Gujarat Hi-tech Industries Ltd. the Companies, are wound up. It is not the case of either of the applicants that they are secured creditors and field of disposal of the property of the Company (in liquidation) are governed by specific provisions of the Act and the Rules. Section 457(2A) of the Act provides as under:- (a) The Official Liquidator shall appoint security guards to protect the property of the company taken into his custody and to make out an inventory or the assets in consultation with secured creditors after giving them notice; (b) appoint, as the case may be, valuer, chartered surveyors or chartered accountant to assess the value of company's assets within fifteen days after taking into custody of property, assets, referred to in subclause (a) and effect or actionable claims subject to such terms and cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition No.23 : The Hon'ble High Court has right to impose such other and further terms and conditions as the Hon'ble High Court may deem, fir and proper, as in the circumstances of the case, may arise and said terms and conditions already specified above will be binding on all the parties concerned. 21. Though at first blush, the prayers prayed for by the applicants appear to be innocuous, the question which arise is that whether such condition is necessary to be provided or not. Upon considering the terms and conditions, which are provided by the Official Liquidator while disposal of the assets of the Company (in liquidation), appropriate conditions are already provided for. 22. For recovery of dues, the applicants have to lodge their claims. It is not the case of the applicants that dues of the applicants would fall within the ambit of Sections 529 and 529A of the Act and at the most, even if any such claim is filed by the applicants, the same would fall under the category of Section 530 of the Act. Therefore, even if any payment is to be made, the same cannot be any contravention to the provisions of the Act. 23. This Court (Coram : Hon'ble Mr.Justi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdoning of the amount for which priority is claimable and not in respect of each and every debt on account of taxes, rates and cesses etc. which may be outstanding at that time and payable. Thus, as and when the claim is lodged by the Sales Tax Department before the Official Liquidator, he has to first ascertain as to whether the liability of sales tax belongs to and is founded within the period of 12 months next before the date of order of winding up i.e. in the present case 22.12.1992. At this stage, it is relevant to note that the Sales Tax Department has already lodged the claim before the Official Liquidator in the year 1995. The Official Liquidator would consider the same in accordance with the provisions of Section 530 of the Companies Act. 19. Thus, merely because this Court has observed in condition No.7 of the terms and conditions that the purchaser is required to pay all the taxes in relation to the property levied/leviable by the State Government or any local authority in relation to the company in liquidation, it does not mean that preferential payment from the sale proceeds be made to any Government Authority or any local authority over the other secured credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision arrived by learned Single Judge as affirmed by the Division Bench of the High Court. 26. In the instant case also, as observed hereinabove, the electricity Companies have already disconnected the earlier connections and therefore, it would not be case of reconnection, but a fresh connection. However, at the same time, it is not at all necessary to provide in the advertisement that some amount is due and payable towards electricity charges from erstwhile consumer. In fact, the applicants have already disconnected the electricity supply for non-payment of charges of erstwhile customer. The Apex Court in the case of M/s.Swastik Industries Vs. Maharashtra State Electricity Board , has held that the electricity Company has power to discontinue the supply of electricity and/or cut the supply if the consumer is neglecting to pay the electricity charges. Similarly, in the case of TCI Distribution Centers Ltd., New Delhi (supra) , the Division Bench of the Madras High Court has held that the Official Liquidator is required to disclose all material facts within his knowledge and should not suppress any information regarding nature, description, extent of the property, non- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yees' contribution shall be deemed to be first charge of the assets of the Company (in liquidation). The case of the applicants cannot be equated with such dues of provident fund. In absence of any provision, it cannot be said that the terms and conditions as prescribed by the Official Liquidator as approved by this Court in any way erroneous. Even assuming that the applicants have priority as prescribed under Section 530 of the Act, in opinion of this Court, such cannot be incorporated in any advertisement for sale of the assets of any Company (in liquidation) as prayed for by the applicants. 29. In opinion of this Court, on the contrary the applicants are required to lodge their claim before the Official Liquidator in accordance with the provisions of the Act and Rules. As far as applicability of Supply Code, more particularly clause 4.1.11 of the Regulation is concerned, the same would be a case between intending purchaser and the electricity Company and therefore, the Official Liquidator is not duty bound to bring to the notice of the purchaser and/or auction purchaser of the Company (in liquidation) that there is outstanding dues of the electricity Company along with in ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
