Kerala High Court
Canara Bank vs M/S.Thomas Stephen & Company Limited ... on 30 May, 2019
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
THURSDAY, THE 30TH DAY OF MAY 2019 / 9TH JYAISHTA, 1941
CO.ADJ.APPEAL.No. 1 of 2016 IN Co.Pet. 53/2000
APPELLANT:
CANARA BANK
ASSET RECOVERY MANAGEMENT BRANCH, SHENOY'S CHAMBERS,
SHANMUGHAM ROAD, ERNAKULAM - 682 031, REPRESENTED BY
ITS MANAGER.
BY ADV. DR.PAULY MATHEW MURICKEN
RESPONDENTS:
1 M/S.THOMAS STEPHEN & COMPANY LIMITED (IN LIQUIDATION)
REPRESENTED BY THE OFFICIAL LIQUIDATOR, HIGH COURT OF
KERALA, ERNAKULAM.
2 ADDL R2. K. ANIL KUMAR, S/O LATE A. KARUNAKARAN,
KAVIDA, 17, VRINDAVAN COLONY, TRIVANDRUM -695 004
(ADDL. R2 IS IMPLEADED AS PER ORDER DATED 29.03.2019
IN C.A. NO.2/2019 IN COMPANY ADJUDICATION APPEAL
1/2016 IN C.P. NO.53/2000)
BY ADVS.
SRI.K.MONI
SRI.KIRAN PETER KURIAKOSE
SRI.N.K.KARNIS
SRI.S.SHYAM
THIS COMPANY ADJUDICATION APPEAL HAVING BEEN FINALLY HEARD ON
30.05.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
A.MUHAMED MUSTAQUE, J.
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Co.Adj.Appeal NO.01/2016
IN
C.P.NO.53/2000
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Dated this this the 30th day of May, 2019
O R D E R
This is an appeal filed by a secured creditor Canara Bank challenging Annexure VI adjudication order of the Official Liquidator. The petitioner, as a secured creditor, raised a claim based on Annexure II final order of the Debts Recovery Tribunal. Annexure III is the Recovery Certificate issued by the Debts Recovery Tribunal. There is no dispute regarding the claim amount raised by the appellant. The short issue in this appeal is in regard to the interest claimed by the appellant. The claim of the petitioner for interest was rejected from the date of winding up till the date of declaration of dividend. This how the appeal was filed.
2. Under Rule 179 of Company (Court) Rules, 1959, the creditor would claim only such interest from surplus from the date of winding up till the CO.ADJ.APPEAL.No. 1 of 2016 IN Co.Pet. 53/2000 3 date of declaration of dividend.
3. The learned counsel for the appellant would argue that there are instances in cases where this Court awarded more than 4% interest.
4. The Official Liquidator points out that was based on discretion exercised on account of the peculiar facts of the case involved.
5. Any how, as seen from Rule 179, a creditor can only claim 4% interest from the date of winding up till the date of declaration of last dividend. In that view of the matter, the appeal is allowed to the extent directing the Official Liquidator to pay 4% interest from the date of winding up till the date of declaration of last dividend. Necessary amount shall be quantified and disbursed within a period of two months.
Sd/-
A.MUHAMED MUSTAQUE JUDGE CO.ADJ.APPEAL.No. 1 of 2016 IN Co.Pet. 53/2000 4 APPENDIX APPELLANT'S EXHIBITS:
ANNEXURE I ANNEXURE - I: A TRUE PHOTOCOPY OF THE CLAIM DATED 31.12.2012 SUBMITTED BY THE APPLICANT BEFORE THE RESPONDENT.
ANNEXURE II ANNEXURE - II: A TRUE PHOTOCOPY OF THE FINAL ORDER DATED 17.02.2000 PASSED BY THE HON'BLE DRT, ERNAKULAM IN T.A.NO. 1196/97.
ANNEXURE III ANNEXURE - III: A TRUE PHOTOCOPY OF THE RECOVERY CERTIFICATE BEARING DRC NO.85 IN T.A.NO.1196/97 ISSUED BY THE HON'BLE DRT, ERNAKULAM.
ANNEXURE IV ANNEXURE - IV: A TRUE PHOTOCOPY OF THE LETTER DATED 19.08.2015 ISSUED TO THE APPLICANT BY THE RESPONDENT.
ANNEXURE V ANNEXURE - V: A TRUE PHOTOCOPY OF THE LETTER DATED 11.09.2015 FROM THE APPLICANT BANK TO THE RESPONDENT.
ANNEXURE VI ANNEXURE - VI: A TRUE PHOTOCOPY OF THE NOTICE OF REJECTION OF PROOF OF DEBT DATED 25.09.2015 ALONG WITH ADJUDICATION ORDER ISSUED BY THE RESPONDENT IN CLAIM NO.419.
SAS/30/05/2019 //TRUE COPY// P.A.TO JUDGE