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2016 (12) TMI 184 - GUJARAT HIGH COURT

2016 (12) TMI 184 - GUJARAT HIGH COURT - TMI - Payment of dues of the Company under liquidation - preference to receive the dues - Held that:- The applicant can be paid his dues only on the basis of pari passu, i.e., amount which is paid to all similarly situated workers/employees of the Company under liquidation and no priority can be given to the applicant under the provisions of the Companies Act. - Considering the various reports which are filed by the Official Liquidator in the proceedi .....

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rt time and again would not entitle him to get any priority dehors the provisions of section 529A. The Official Liquidator has declared before this Court that claim of the applicant shall be considered as and when disbursement is done. It is a matter of fact that the Company in which the applicant was working has been wound up by an order of this Court and still the winding up proceedings are pending and the disposal of the properties of the Company in liquidation is still to take place. In ligh .....

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In MISC. CIVIL APPLICATION (OJ) NO. 166 of 2014 In COMPANY APPLICATION NO. 139 of 2012 - Dated:- 2-12-2016 - MR. R.M.CHHAYA, J. FOR THE APPLICANT : PARTYINPERSON, ADVOCATE FOR THE RESPONDENT : MR PRITESH L PARIKH, ADVOCATE ORAL ORDER 1. By this application, the applicant has prayed as under: 1) THE CLAIM AMOUNT FOR IMMEDIATE PAYMENT of ₹ 10,82,292/-(Rupees ten lakhs eighty two thousand two hundred and ninetytwo only) IS the amount, inclusive of interest upto 31/03/2015. Further interest be .....

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es and my wife was carrying and was in an advanced stage. 3) Adequate action be taken for the undue delay on the concerned persons/authorities, granting me appropriate compensation for my suffering. 4) Cost of litigation and incidental expenses over 40 years or any other reliefs as the Hon'ble Court may deem appropriate in this case, be ordered to be paid. 5) The case be taken up on priority basis considering my old age, illness, failing health besides the age of the case i.e. 40 years, in a .....

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the contentions which are raised by the petitioner in the application, it would be apt to note that the applicant was working in M/s.Maharana Mills Ltd., which is ordered to be woundup by this Court. As stated in the application, the petitioner prays for immediate payment of claim amount of ₹ 10,82,292/-. 4. The record indicates that the applicant herein had preferred OJ Misc Civil Application No.166/14, wherein this Court (Coram : K.M. Thaker, J.) passed the following order on 13.11.2014 .....

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in Company Application No.139 of 2012 and order dated 05.03.2014 passed in OJCA No.102 of 2014, in the interest of justice. 7B This Honble Court may be pleased to direct the Official Liquidator to receive further documents from the applicant, if any, in support of his claim and forward the records and other documents which may be are received from the applicant to the Chartered Accountant, who in turn may be directed to verify the claim and give report to the Official Liquidator within such time .....

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fication of condition of order dated 19.06.2013 passed in Company Application No.139 of 2013 by this Honble Court (Coram:K.M.Thaker,J), which came to be rejected vide order dated 05.03.2014 by this Honble Court (Coram:K.M.Thaker,J.) ii. O.J. Misc. Civil Application No.184 of 2013 converted from O.J.(ST) No.2536 of 2013 on 24.09.2013 for restoration of above stated OJCA No.102 of 2014 converted from O.J. (ST) No.1754 of 2013, which came to be allowed by this Honble Court (Coram:K.M.Thaker,J), vid .....

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) in Civil Application No. 102 of 2014 in Company Applicatin No.139 of 2014, which came to be decide by this Honble Court (Coram:K.M.Thaker,J.) vide order dated 22.08.2014. 3(A) The applicant submits that as per the information of the applicant, the office of the Official Liquidator has now received records which are necessary to decide the claims of the applicant. The applicant submits that besides that, the applicant is also in possession of some documents which the applicant can submit to the .....

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ased to recall the orders date 19.06.2013 and 05.03.2014. 2.Any objection against the request made by the applicant is not filed by the Official Liquidator or by any other secured creditor or any other workmen. 3.Having regard to the facts and circumstances of the case, more particularly, having regard to the fact that the applicant is also one of the workmen of the Company in liquidation and reasons mentioned in applications i.e. O.J.Misc.Civil Application No.55 of 2014 and O.J.Civil Applicatio .....

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ng with claims of other workmen. 2.On examination of this application as well as other/previous application filed by the applicant and upon considering the relevant details and submissions on behalf of the petitioner, the Court is satisfied that the applicant has offered satisfactory explanation and sufficient cause to allow/extend the time so as to enable him to submit his claim and to condone the delay caused in filing the claim before the Official Liquidator. Therefore, following order is pas .....

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nd submit his report within a three weeks. (D) When the report is received, the applicant and the Official Liquidator shall take necessary and further steps according to the report of the C.A., but subject to other order/s passed by the Court in other Company Applications and/or Company Petitions. With the aforesaid observations, present application stands disposed of. 5. The aforesaid order indicates that the applicant also approached this Court earlier. Pursuant to the order dated 13.11.2014, .....

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ar with other workers/employees of the Company as and when the orders for further disbursement are to be passed by this Hon ble Court in future in the matter of M/s. Maharana Mills Ltd. (In Liquidation). c) This report is submitted for such other and further orders and directions as may be considered just and appropriate in the matter by this Hon'ble Court. 6. The record indicates that notice came to be issued to the applicant. Official Liquidator had contended that the applicant who was res .....

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s that the after terminating the said employee, the said mill company was appointed another Stenographer Mr. Navinbhai. P. Gadhvi, P. F. No. 3877 for post of Stenographer. Mr. N. P. Gadhavi has in service till the mill closed in the year of 1983I whereas the company was wound up in the year of 1989 in terms of winding up order dated 22121989 passed in Company Petition No. 138 of 1989. The Chartered Accountants has verified and calculated his claim and quantified total eligible claim of Mr. N. P. .....

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tion No.139 of 2012, wherein, this Court gave certain directions to the office of Official Liquidator in para No.6 of the order. In pursuance to the said order, the claim of the present respondentworkman was verified and sent to Chartered Accountant, M/s. Vibhakar J. Trivedi & Co. The said firm of Chartered Accountant gave its report on 22.12.2014. As per the said report, the respondent workman is entitled to get an amount of ₹ 1,00,550/-. 2. Learned advocate Mr.Vishal Mehta appearing .....

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cuments alongwith the report of other Chartered Accountant before the office of the Official Liquidator, and therefore, Official Liquidator be directed to verify the same and forward the said documents with the record of the labour Court to the Chartered Accountant M/s. Vibhakar J. Trivedi & Co. for reverification of the claim. 3. In view of the aforesaid submissions canvassed on behalf of learned advocates for the parties, the respondentworkman shall submit necessary documents alongwith the .....

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ification of the claim of the respondentworkman. The concerned Chartered Accountant shall reverify the said claim, and this process shall be completed within a period of six weeks from the date of receipt of the documents by the firm of Chartered Accountant viz. M/s. Vibhakar J. Trivedi & Co. 4. In view of the aforesaid direction, this matter is adjourned on 17.08.2015. 9. In response to the order dated 16.06.2015, the Official Liquidator filed a further report on 16.08.2015, wherein it is i .....

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der dated 29092001 of Ld. Industrial Court and guideline given in judgment dated 12051999, M/s. Vibhakar J. Trivedi & C0,, Chartered Accountants has calculated claim of Rs. l,00,550/-towards Back wages, Retrenchment Compensation and Gratuity of Mr. N. Jankiraman at par with other workers of the Company in liquidation is very proper. 10) That, the Official Liquidator further most respectfully submits that Provident Fund, Interest and other legal expenses etc. amounts are not payable to any wo .....

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r. A copy of Appointment letter dated 2371975 and Termination letter dated l641977 are annexed herewith and marked as Annexure F colly. 11) That, the Official Liquidator further most respectfully submits that the Official Liquidator has made adhoc payments of ₹ 9.23 Crores against total quantified/admitted claim of ₹ 34,85,47,lO6/-in terms of the order dated 2807201] passed in Company Application No. 310 of 201i to other workers/employees of the Company in liquidation @26.28% of thei .....

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respectfully submits that Respondent shall also be paid by the Official Liquidator the balance amount at par with all other workers/employees of the Company as and when the orders for further disbursement are to be passed by this Hon ble Court in future. 10. The record also indicates that the applicant herein had filed an affidavitinreply dated 11.09.2015. In response to the said affidavit, Official Liquidator had filed further report dated 15.10.2015. Considering the same and having heard the .....

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d by Mr.Anilkumar Patel, Police Constable, who is posted in the security of the High Court, that he has been informed by Mr.Inderjit Bedi, Inspector, that he is in receipt of a communication from the Registrar (Administration) addressed to the Police Commissioner, that the respondent has intimated that he intends to start an agitation before the High Court of Gujarat. 3. Mr.J.S.Yadav, learned advocate submits that in spite of the leavenote of Mr.Pritesh L. Parikh, learned advocate, he is ready a .....

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hat, as stated in paragraph7 of the affidavitinreply, the Chartered Accountant has not calculated the claim of the respondent as per the order of the Industrial Court, wherein it is specifically mentioned that the respondent is entitled to get all the backwages from 16.06.1997 to February, 1983. The Chartered Accountant has considered the salary of the respondent as ₹ 600/-only, for all the years, without any basis, which is incorrect and erroneous. 6. Mr.J.S.Yadav, learned advocate submit .....

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ed Accountant is erroneous, the respondent shall give proper details, with proof of his claim, to the Chartered Accountant, so that the matter regarding his claim can be decided at the earliest. 8. Mr.Vishal B. Mehta, learned advocate for the respondent submits that the respondent has supplied the papers at Pages41 and 42 of the paperbook, to the Chartered Accountant. 9. Mr.J.S.Yadav, learned advocate for the Official Liquidator submits that the said papers have been considered by the Chartered .....

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appropriate that the respondent submits his consolidated claim, along with proof to the Official Liquidator. After claim is submitted by the respondent, the Official Liquidator shall hand it over to the Chartered Accountant, who shall again work out the entire claim of the respondent, taking into consideration the material supplied by the respondent. 12. At this stage, Mr.J.S.Yadav, learned advocate for the Official Liquidator had drawn the attention of this Court to paragraph6 of the Report of .....

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lary of the respondent as ₹ 600/-per month. 13. The above makes it even more imperative that the respondent produces admissible proof of his claim so that the matter can proceed further. It may be kept in mind by the respondent that there can be no speedy decision of his claim if proper proof in support of it is not supplied. 14. Mr.Vishal B. Mehta, learned advocate for the respondent submits that the respondent may be granted a period of fifteen days in order to enable the respondent to d .....

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. In terms of the order dated 28072011 passed in, Company Application No. 310 of 2011 the other workers/employees of the Company in liquidation paid @26.28% of their admitted/quantified claim. Therefore, in order to bring the present Respondent at par with all other workers/employees of the Company in liquidation an amount of ₹ 53,266/-being @26.28% of the total reverified claim of ₹ 2,02,687/-of the Respondent should be paid to him to make at par with other regular workers/employees .....

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ther workers of the Company as and when the orders for further disbursement are to be passed by this Hon ble Court in future after realization of land/property of the Company in liquidation. 12. It deserves to be noted that the said statement made in the report dated 03.02.2016 is based upon the Chartered Accountant's report which is annexed with the report. The record further indicates that the petitioner again reiterated the stand by filing a further affidavitinreply dated 15.02.2016. Upon .....

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Closure) only. However, the Chartered Accountants has calculated the service of the Respondent for the period from 1661977 (date of Termination) to 22121989 (date of winding up order) to make the claim of respondent at par with the other workers of the mill Company in liquidation. 4) In view of the above facts and circumstances, it is submitted that the Chartered Accountant has not calculated less service period of the Present Respondent and finally reverified the claim amount to the tune of  .....

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im to make at par with other regular workers/employees of the Company in liquidation in terms of the order dated 19062013 passed in Company Application No.139 of 2012. However, this office has already paid ₹ 26,425/-in terms of order dated 30102015 to the Respondent, Hence the Official Liquidator may be permitted to pay the balance amount of ₹ 26,841 (i.e: 5326626425) to the respondent in order to make at par with other regular workers/employees of the Company in liquidation. The Res .....

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rt, the Official Liquidator has filed a report dated 03.03.2016, wherein, at paragraph 4 it is stated that the claim of the respondent workman Shri N Janakiraman Iyer has been reverified and amounts to ₹ 2,02,687/-, up to the date of the winding up order. It is further stated that the Official Liquidator has already paid the amount of ₹ 26,425/-in terms of the order dated 30.10.2015, to the respondent. The Official Liquidator submits that in order to bring the present respondent at p .....

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vocate for the respondent, has drawn the attention of the Court to paragraph No.6 of the affidavitinreply filed on behalf of the respondent, affirmed on 15.02.2016, wherein, it is stated that the claim of the respondent should, at least, be calculated at ₹ 2,24,478/-, as claimed by Mr. N P Gadhvi, who was appointed after the termination of the petitioner as stenographer, making him junior to the petitioner. The respondent, therefore, objects to the reverified amount of ₹ 2,02,687/-, .....

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ated by the Official Liquidator. The payment of the above amount be made within one week from today, subject to the respondent providing him with the bank details such as Bank Account number and the I.F.C Code. List on 29.03.2016. It deserves to be noted that in the said order, this Court has in para 2, recorded the readiness and willingness to accept the amount of ₹ 26,841/-, subject to his rights and contentions to put him at par with the other regular workers. 14. The Official Liquidato .....

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ified the claim of Mr. N.P. Gadhvi to the tune of ₹ 2,24,478/-up to the date of winding up order, the bifurcation of which are as under : a) Back wages ₹ 1,56,088/- (From 1121983 to 22121989) b) Gratuity ₹ 34,195/- (From 1963 to 1989) c) Retrenchment Compensation ₹ 34,195/- (From 1963 to 1989) Total ₹ 2,24,478/- 3) That, the Official Liquidator further most respectfully submits that the Chartered Accountants reverified the claim of the Present Respondent to the tune .....

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nbhai P. Gadhvi has longer than the present Respondent. Therefore, due to longer service period, Shri N. P. Gadhvi is getting more amount of gratuity and retrenchment compensation in comparison to Shri N. Jankiraman Iyer, the present respondent. 5) In view of above facts and circumstances, it is submitted that the Official Liquidator has paid an amount of ₹ 53,266/-( 26841+26425) being @26.28% of the total reverified claim of ₹ 2,02,687/-of the Respondent till date in order to bring .....

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ports dated 27.04.2015, 06.08.2015, 15.10.2015, 03.02.2016, 03.03.2016 and 28.03.2016, the Official Liquidator has reiterated that the Official Liquidator has already paid an amount of ₹ 53,266/-being 26.28 % of the total reverified claim of ₹ 2,02,687/-and the applicant who was respondent therein is brought at par with other regular workers/employees of the Company in liquidation. The Official Liquidator has also further averred that rest of the claim of the applicant/respondent the .....

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anner, is not only false, but is totally uncalled for. On the contrary, it is found from the record that the time and again, either through advocates as well as now as partyinperson, the applicant has come with the similar prayer. It also deserves to be noted that on every occasion, even in this application, the applicant has filed his written submissions and has reiterated his stand for a priority payment. Reckless prayers are prayed, which has nothing to do with the provisions of the Companies .....

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al written arguments of the applicant. Mr. Parikh, learned advocate also relies upon the reports which are filed. For orders, S.O. to 02.12.2016. 17. It is also noteworthy that on 20.09.2016, this Court passed the following order Mr. Iyer, partyinperson, has contended that in case of his junior, one Mr. N.P. Gadhvi, though the period is less, the backwages as well as grant of gratuity and retrenchment compensation is calculated on enhanced manner whereas in case of the applicant, though the back .....

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nt Mr. N. Jankiraman had appointed on 01081975 as Stenographer, thereafter. he was terminated on 16041977 whereas Mr. Navinbhal P. Gadhvi had Joined in the Company on 06091963 as Clerk, thereafter, he was promoted as Typist and subsequently to the post of Stenographer. The service period of Mr. Navinbhai P. Gadhvi has longer than Mr. N. Jankiraman. Therefore, due to longer service period, Mr. N. P. Gadhvi is getting more amount of gratuity and retrenchment compensation in comparison to Mr. N. Ja .....

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% of the total reverified claim of ₹ 2,02,687/-in order to bring the present applicant at par with all other workers/employees of the Company in liquidation. 19. In order to appreciate the prayers which are prayed for, it would be appropriate to refer to the relevant sections of the Companies Act. 529A. Overriding preferential payment. Notwithstanding anything contained in any other provision of this Act or any other law for the time being in force, in the winding up of a company (a) workm .....

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ction 529A, there shall be paid] in priority to all other debts- (a) all revenues taxes, cesses and rates due from the company to the Central or a State Government or to a local authority at the relevant date as defined in clause (c) of subsection (8), and having become due and payable within the twelve months next before that date; (b) all wages or salary (including wages payable for time or piece work and salary earned wholly or in part by way of commission) of any employee, in respect of serv .....

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of reconstruction or of amalgamation with another company, all amounts due, in respect of contributions payable during the twelve months next before the relevant date, by the company as the employer of any persons, under the Employees State Insurance Act, 1948 (34 of 1948), or any other law for the time being in force; (e) unless the company is being wound up voluntarily merely for the purposes of reconstruction or of amalgamation with another company, or unless the company has, at the commencem .....

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the employees maintained by the company; and (g) the expenses of any investigation held in pursuance of section 235 or 237, in so far as they are payable by the company. (2) The sum to which priority is to be given under clause (b) of subsection (1), shall not, in the case of any one claimant, 3[exceed such sum as may be notified by the Central Government in the Official Gazette]. 4[***] (3) Where any compensation under the Workmen s Compensation Act, 1923 (8 of 1923), is a weekly payment, the a .....

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y advanced by some person for that purpose, the person by whom the money was advanced shall, in a winding up, have a right of priority in respect of the money so advanced and paid, up to the amount by which the sum in respect of which the employee or other person in his right would have been entitled to priority in the winding up has been diminished by reason of the payment having been made. (5) The foregoing debts shall- (a) rank equally among themselves and be paid in full, unless the assets a .....

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e foregoing debts shall be discharged forthwith so far as the assets are sufficient to meet them, and in the case of the debts to which priority is given by clause (d) of subsection (1), formal proof thereof shall not be required except in so far as may be otherwise prescribed. (7) In the event of a landlord or other person distraining or having distrained on any goods or effects of the company within three months next before the date of a winding up order, the debts to which priority is given b .....

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rendered to the company during that period; (b) the expression accrued holiday remuneration includes, in relation to any person, all sums which, by virtue either of his contract of employment or of any enactment (including any order made or direction given under any enactment), are payable on account of the remuneration which would, in the ordinary course, have become payable to him in respect of a period of holiday, had his employment with the company continued until he became entitled to be al .....

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, the date of the passing of the resolution for the voluntary winding up of the company. (9) This section shall not apply in the case of a winding up where the date referred to in subsection (5) of section 230 of the Indian Companies Act, 1913 (7 of 1913), occurred before the commencement of this Act, and in such a case, the provisions relating to preferential payments which would have applied if this Act had not been passed, shall be deemed to remain in full force. In view of the aforesaid prov .....

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