Bombay Mercantile Cooperative Bank Limited v. Official Liquidator

1. C.A.No.393/2007 has been filed by Bombay Mercantile Cooperative Bank Limited for de-sealing of the property bearing number F-31, Site-B, Surajpur Industrial Area, Greater Noida, U.P. It is stated that this property is mortgaged with the said bank.

2. C.A.No.699/2007 has been filed by the Official Liquidator for recall of the order dated 7th October, 2005. It is stated in the application that the Official Liquidator had visited the factory premises mentioned above on 20th January, 2000 and had put three locks. Thereafter, valuer was appointed by the Court for valuation of land, plant and machinery. It is stated that Bombay Mercantile Cooperative Bank Limited had responded to an advertisement stating that an amount of Rs.5,51,00,000/- was due and payable to them by the respondent company. It is stated that after the order dated 7th October, 2005, the Official Liquidator had written notices to the ex-directors of the respondent company but no one had come forward. Accordingly, it is submitted that claim of the secured creditor has not been settled by the respondent company. It is alleged that there is collusion between Bombay Mercantile Cooperative Bank Limited and the exdirectors.

3. The present winding up petition was filed by Mr. Matthew Mavely under Sections, 433(e), 434 and 439 of the Companies Act, 1956 on account of failure of the respondent to pay Rs.6,00,000/- for which cheques had been issued by the 2010:DHC:5928 respondent company. The company petition was admitted vide order dated 20th January, 2000 and the Official Liquidator attached to this Court was appointed as provisional liquidator to take over all the assets of the respondent company including the books of accounts and other records. Citations were also directed to be published. Subsequently the Official Liquidator filed an application under Sections 468 and 477 of the Act being C.A. No.382/2001. Status report etc. were also filed. On 21st July, 2004, final winding up order was passed.

4. Ex-management filed C.A.No.1500/2004 for setting aside of the winding up order dated 21st July, 2004. During the pendency of the said application, the exmanagement had deposited cheques of Rs.6,00,000/- in the CCD account and on encashment, it was directed that the said amount would be withdrawn by the petitioner.

5. C.A.No.1500/2004 along with other applications including C.A.No.382/2001 and Crl.O(Co.) No.3/2001 were disposed of vide order dated 7th October, 2005. The Court gave a finding that the management of the respondent company was aware of the winding up proceedings before the Court. However, noticing the fact that the respondent had deposited Rs.6,00,000/- and vide order dated 17th February, 2005 the said amount was directed to be released to the petitioner, in the operative portion of the order dated 7th October, 2005, it was directed as under- “In view of the order dated 17th February 2005, based on the statement of the counsel for the respondent, the petitioner shall be entitled to withdraw the amount deposited in this Court. Since on payment of this amount the claim of the petitioner stands settled, the winding up order can be recalled on this ground. The O.L., therefore, shall de-seal the premises and hand over possession thereof to the respondent company after recovery the cost which the O.L. has incurred.”

6. It is clear and apparent that the winding up order has been recalled and the company petition stands disposed of as settled. The Official Liquidator has been directed to de-seal the premises and hand over the possession to the respondent company after recovery of costs incurred by the Official Liquidator.

7. C.A.No.699/2007 was filed by the Official Liquidator nearly two years after the order dated 7th October, 2005 was passed. I do not see any reason and justification to entertain this present application. The Official Liquidator is required to comply with the order dated 7th October, 2005. Bombay Mercantile Cooperative Bank Limited who is a secured creditor of the respondent company wants to proceed against the property. They are at liberty to do so. In law also they are entitled to enforce their rights as a secured creditor outside the winding up proceedings. It is not a case of the Official Liquidator that any worker has a claim or payment to workers is outstanding.

8. It is pointed out by the counsel for the Official Liquidator that they had not deployed security guards at the factory premises. The Official Liquidator will compute the charges and raise their claim from the respondent company. However, this cannot be a ground and reason to not permit and allow the secured creditor from enforcing their rights. The Official Liquidator will de-seal the premises and remove locks within 15 days from the date copy of this order is received. The Official Liquidator will inform Bombay Mercantile Cooperative Bank Limited about the date and time when the said exercise will be undertaken. On the said date possession of the premises will be handed over to the respondent company. However, it will be open to the Bombay Mercantile Cooperative Bank Limited to take possession of the premises from the respondent company in accordance with law. In case of non-payment of the dues by the management of the respondent company, it will be open to the Official Liquidator to approach this Court for recovery of the dues. The applications are disposed of.

SANJIV KHANNA, J. DECEMBER 07, 2010 NA