Gujarat High Court
Idbi vs Official on 3 February, 2011
Author: K.M.Thaker
Bench: K.M.Thaker
COMA/207/2011 17 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD COMPANY APPLICATION No. 207 of 2011 In COMPANY PETITION No. 116 of 2001 ========================================================= IDBI BANK LTD - Applicant(s) Versus OFFICIAL LIQUIDATOR OF AMAR POLYSTER LTD (IN LIQUIDATION) & 3 - Respondent(s) ========================================================= Appearance : MR BH BHAGAT for Applicant(s) : 1, OFFICIAL LIQUIDATOR for Respondent(s) : 1, MS AMEE YAJNIK for Respondent(s) : 1, MS NALINI S LODHA for Respondent(s) : 2 - 3. MR RD DAVE for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 27/12/2011 ORAL ORDER
1. Heard Mr.Bhagat, learned advocate for the applicant, Ms. Yajnik, learned advocate for OL, Ms. Nalini S. Lodha, learned advocate for respondent Nos. 2 and 3 and Mr. Dave, learned advocate for respondent No. 4.
2. The applicant has taken out summons dated 3.2.2011 seeking below mentioned relief/s:-
"(A) The respondent may be directed to disburse and pay with permission of this Hon'ble Court an amount of Rs.3.75 Crores realized from the sale of the assets and properties of the Amar Polyster Ltd. in appropriate proportion between secured creditors and workmen if at all they are there or the amount which is found due and payable after deducting advertisement expenses.
(B)......."
3.The applicant has also filed affidavit dated 3.2.2011 in support of the summons wherein it is inter alia claimed that:-
"3.
I say and submit that, by an order dated 08.10.2010 passed by this Hon'ble High Court in OLR No. 99 of 2010, the sale of the assets and properties of the said company situated at Dholka, was confirmed in favour of M/s. Manibhadra Sales Corporation for Rs.3.75 Crores. I further submit that, on depositing of entire purchase consideration by the above successful bidder the official liquidator handed over possession of the assets and properties situated at Dholka to the said purchaser on 30.11.2010. In view of this Hon'ble High Court's order the official liquidator will be permitted to effect the sale of assets and properties in favour of M/s. Manibhadra Sales Corporation on receiving Rs.3.75 Crores. The official liquidator has received totally Rs.3.75 Crores on sale of assets and properties of the said company situated at Dholka. Hereto annexed and marked as Annexure-A is the copy of the order dated 8.10.2010 passed in Official Liquidator Report No.99 of 2010.
4. I say and submit that, the applicant institution had granted various financial assistances to the company in liquidator and the said financial assistances were secured, inter alia, by first mortgage and charge on all the movable and immovable assets of the company in liquidation. Thus the applicant is a secured creditor having first charge on the land and building and plaint and machinery of the entire company's properties situated at Dholka. The applicant has already filed its affidavit of proof of debt with the respondent on 22.11.2005. Hereto annexed and marked as annexure-B is the copy of the affidavit of proof of debt dated 22.11.2005."
4. The applicant has relied on order dated 8.10.2010 passed in OLR No. 99 of 2010. The OL, at the initial stage filed report dated 27.6.2011 in response to present application. In the said report the OL has, inter alia stated that vide order dated 7.3.2005 passed in Official Liquidator's Report No.07 of 2005 the Court had confirmed the sale of the assets and properties of the company i.e. Plot No.2406, GIDC Estate, Chhatral, Dist. Mehsana for Rs.8 Lacs and sale of property being 301, Sampada building, Nr. Methakhali Six Road, Ahmedabad for a sum of Rs. 39 Lacs was confirmed vide order dated 9.1.2007 passed in OLR No.161 of 2007 and sale of properties situated at Dholka was confirmed vide said order. The OL also mentioned the details of the dues of secured creditors derived from the statement of affairs filed by Ex-Director. The details mentioned by the OL in the said report dated 27.6.2011 are as below:-
Sr. No. Name of the Creditors Amount of Dues (Rs.) 01 IDBI 3,71,48,568/-02
GIIC 33,712/-03
Bank of Baroda (Mortgage of movables assets) 18,06,573/-04
Bank of Baroda (Hypothecation of RM,FG, semi FG, consumables, stores and spares and Book Debts) 5,20,30,707/-05
Bank of Baroda, short term deposit against BG 14,30,000/-06
Union Bank of India 2,42,58,918 Total 11,67,08,478/-
5.
Besides the aforesaid details the OL has also mentioned that vide order dated 16.4.2010 the OL was directed to invite claim from the secured creditors and that therefore appropriate advertisement was published on 24.4.2011. In response to which the OL received claims from certain creditors who claimed to be secured creditors and also from Union who claimed to be the union representing the workman of the company (in liquidation). In the said report dated 27.6.2011 the OL has mentioned details of the claims received from the said creditors and Union. The details mentioned by the OL in the report are as below:-
Sr. No. Name of the Claimant Amount 01 GIIC 5,28,08,512/-02
Bank of Baroda 9,05,00,676/-03
IDBI Bank 9,99,58,090/-04
Union Bank of India 4,05,52,101/-05
Sarvodaya Mazdoor Sangh 13,99,308/-
6.
Subsequently, the OL filed another report dated 11.10.2011 wherein the OL stated that after receipt of the claim the Chartered Accountant was appointed to verify the claims. The Chartered Accountant appears to have submitted his report dated 22.9.2011. It is also claimed that after the said report was submitted by the Chartered Accountant the secured creditors and union have forwarded their objections against the said report. Subsequently OL filed another report dated 19.12.2011 stating, inter alia, that in view of the order dated 23.11.2011 objections raised by secured creditors against the report of the Chartered Accountant were forwarded to the Chartered Accountant for his response / clarification and comments have been called for. It is also claimed by OL that so as to deal with the objections, he required certain details from the secured creditors and for that purpose he had forwarded necessary requests to the concerned secured creditors. It is also claimed that the details and the response from the Chartered Accountant are not received.
7. In the aforesaid background Mr. Bhagat, learned advocate for the applicant has submitted that so far as the property situate at Dholka (which has been disposed of) is concerned, the applicant has the first charge and as such, in view of the fact that it has first charge and its claim is in the tune of Rs.9,99,58,090/-, it is the sole secured creditor and that therefore the OL may be directed to disburse, in its favour, the amount which is available for disbursement i.e. sum of Rs.3.75 Crores.
8. To support his submission, Mr. Bhagat learned advocate for the applicant has referred to and relied on the report of the Chartered Accountant of which reference has been made hereinabove. He submitted that certain rider with regard to the applicant's modification of charge is mentioned in the said report, however subsequently, the applicant has submitted necessary documents i.e. proof of the charge created in favour of the applicant bank and that therefore the said reservation expressed in the opinion odes not survive. He vehemently submitted that the applicant is the only secured creditor entitled for disbursement of the amount received from the sale of the property at Dholka.
9. The aforesaid submission by Mr.Bhagat, learned advocate for the applicant is restricted to the sale of Dholka Property.
10. So far as the respondent No.4 is concerned, Mr. Dave, learned advocate who appears for respondent No. 4 has fairly accepted and declared that qua the said property i.e. property at Dholka respondent No. 4 did not have any charge and that therefore at this stage the respondent No.4 does not raise any claim with regard to the sale proceeds received from the sale of the property at Dholka. He submitted that so far as respondent No. 4 is concerned it has the charge over and claim in respect of the property at Chhatral and not in respect of the property at Dholka.
11. Ms. Lodha, learned advocate for the respondent Nos. 2 and 3 has raised objection with regard to the applicant's claim for exclusive charge and payment in respect of sale proceeds received from the sale of the property situated at Dholka.
She submitted that the said respondents have, second charge over the said property. She also submitted that though it is claimed by the applicant that the document supporting the applicant's claim with regard to the modification of the charge over the Dholka property have been filed, actually there is discrepancy and dispute with regard to the date on which the charge was originally created and that therefore submission with regard to the modification is irrelevant.
She has also submitted that the claim of the applicant cannot be treated as claim by the first charge holder. She also submitted that the contention of the applicant that it has exclusive charge over the said property because its claim is in the sum of Rs. 9 Crores whereas the sale proceeds received from the property are only in the tune of Rs. 3.75 Crores and that therefore even if the claims of other secured creditor holding second charge are taken into account then also they do not stand any chance to receive any amount so long as the said dues of the applicant are not fully and completely cleared, cannot be sustained and that the applicant is not justified in claiming that his claim is to the tune of more than Rs. 9 Crores inasmuch as the said sum includes the claim of interest and comprises interest calculated at simple rate and also calculated at compounded rate which is neither proper nor permissible.
She submitted that the expansion of the claim amount is not in accordance with provisions of law.
Ms. Lodha, learned advocate submitted that the respondent No.3 has placed its objection on record and also submitted said objection to the OL vide letter dated 7.10.2011. The said objection read thus:-
"(a) It appears from Annexure-C pertaining to the statement of claim of IDBI that sums of Rs.3,32,89,438/- and Rs.2,94,18,587/- have been considered towards interest @ 20% as simple interest and compounded interest and against the outstanding of Rs.2,83,00,000/-. The CA has not explained as to how IDBI is entitled to charge simple interest @ 20% and compounded interest separately at the same time running into an aggregate sum of Rs.6,27,08,025/- on the outstanding of Rs.283 Lacs and whether the same is permissible in law.
(b) The purported claim of IDBI as secured creditor cannot be accepted in view of the non-registration of charge created by way of Deed of Hypothecation dated 16.3.1993 for the term loan as the form No.8 shows the date of creation of charge as 16.3.1994 instead of correct date of creation i.e. 16.3.1993. As a result, the modification of charge effected by deposit of title deeds on 18.3.1994 in absence of registration of original charge, i.e. 16.3.1993 will also be of no avail."
12. Mr. Bhagat, learned advocate for the applicant has submitted that the claim of the applicant is for sum of more than Rs.9 Crores whereas the sale proceeds received from the property at Dholka are only Rs.3.5 Crores. He submitted that the union representing the workers has made the claim which is for sum of about Rs.14 lacs. So as to forestall any objection from the side of the workers with regard to the applicant's request for disbursement, learned advocate Mr. Bhagat submitted that the applicant does not have any objections if amount of Rs.14 to 15 lacs covering entire claim of worker is taken out from the aforesaid amount of Rs.3.75 Crores and the balance sum of Rs.3.60 Crores is made available for disbursement. He submitted in that event also considering its claim amount which is to the tune of Rs.9 Crores, it will still remain exclusive claim in view of the fact that the applicant has first charge over the said property and objection raised by the respondent Nos. 2 and 3 are not relevant at this stage.
13. Learned advocate for the OL has submitted that it has forwarded objection raised by the respondent No.3 vide communication dated 7.10.2011 for consideration by the Chartered Accountant and his opinion in connection with the objection raised by respondent Nos. 2 and 3, however, the office of OL has yet not received any response from the Chartered Accountant.
14. At this stage Mr. Bhagat learned advocate for OL has made certain serious allegations regarding the conduct and affairs of office of OL on the basis of the instruction received by him from his client against the functioning and conduct of the office of OL. He submitted that according to the information given by the Chartered Accountant received from one of the officers of his client, the report in response to the objection raised by the respondent Nos. 2 and 3 is ready however OL was not receiving / accepting the same and had informed the Chartered Accountant that there was no urgency and because of the said instruction of the OL the report has not been forwarded and is not placed on record before the Court. In view of the said submission by learned advocate for the applicant this Court passed order dated 15.12.2011 which is followed by another order dated 19.12.2011. The relevant part of the order dated 15.12.2011 reads thus:-
"Mr. Bhagat, learned advocate for the applicant has submitted that the Officers of the Bank have been told by the Chartered Accountant that the further/additional report. In pursuance of the Court's previous order asking clarification on two issues, is ready. However, on the instruction from the office of OL, the report is not forwarded because he (Chartered Accountant) is informed by office of OL that there is no hurry to place the report on record. The submission made by learned advocate during the hearing of this application, is of serious nature and has to be taken note of with all seriousness and appropriate inquiry and measures are required to be taken since it shows the conduct of the office of OL. For the said purpose, it is necessary that the concerned officer of the Bank puts the said aspect on record in writing by stating all relevant details. Mr. Bhagat, learned advocate for the applicant is granted time to enable the officer, who informed such details, to place the details on record in writing, by way of affidavit. The affidavit to be filed on or before 19/12/2011.
S. O. to 19/12/2011."
The relevant portion of the order dated 19.12.2011 reads thus:-
"2. Despite the said order, today, the Official Liquidator has filed report dated 12/12/2011 and stated that the Chartered Accountant is unable to submit his final report because except IDBI, other secured creditors have not furnished comments/submissions in support of their claims.
3. The report required to be submitted by the Chartered Accountant at this stage is in connection with the reference to the two issues raised by the Union Bank vide its letter dated 07/10/2011 which is part of the Official Liquidator's report dated 11/10/2011. It is of course, for the Chartered Accountant to determine as to whether response from other secured creditors is necessary for dealing with the issues raised by Union Bank in its letter dated 07/10/2011 or it can be independently replied. Until now, the Court has not received any response from the Official Liquidator or from the Chartered Accountant with regard to the aspects mentioned by the secured creditors namely Union Bank in its letter dated 07/10/2011. The court has waited for the clarification which is still not received. Therefore, the claim made by the applicant by way of summons dated 03/02/2011 is required to be determined and appropriate orders are required to be passed. The Official Liquidator is directed to file his response on or before 21/12/2011 in connection with the aspects mentioned by the said other secured creditors in its letter dated 07/10/2011. If the response is not filed it would be construed as non compliance of the present order and it would also mean to say that the Official Liquidator has not done anything with regard to letter dated 07/10/2011 and hence, appropriate orders regarding claim of the applicant will be passed by the Court after considering the material which is presently available on record.
4. As regards the aspects recorded in the order dated 15/12/2011 in light of the grievance made by learned advocate for the applicant, any affidavit of the concerned officer has not been placed on record though in the said order it was observed that the affidavit to be filed on or before 19/12/2011.
5. As a last chance, time until 21/12/2011 is granted to file file affidavit. Learned advocate Mr. Bhagat for the applicant has submitted that the base of the grievance made by him was the instruction conveyed to him by the officer of the applicant namely one Mr. Khatri who is, presently working as DGM in the applicant-bank. "
15. In pursuance of the said orders one Mr. Ashokan, Deputy General Mange of the applicant company has filed affidavit dated 20.12.2011. The relevant portion of the said affidavit reads thus:-
"1.
I am the Deputy General Manage of IDBI Bank Limited, the applicant and presently posted at its Ahmedabad Branch Office situated at the address as mentioned herein above. I say that I am conversant with the facts of the captioned company application and have gone through the records of the present case and documents. Therefore, I am competent to make this affidavit to submit the following and place on record the photocopies of the following documents and letters pertaining to the captioned company application:
(i) IDBI's reply letter dated 1.7.2011 addressed M/s. Kashiparekh and Associates in response to their letter dated 29.6.2011, forwarding therewith the copies of the requisite documents viz. affidavit of proof of debt, loan/security documents, form no.8 along with cash receipts issued by Registrar of Companies etc., is enclosed herewith and referred as annexure-1.
(ii) IDBI's reply letter dated 17.8.2011 addressed to M/s. Kashiparekh and Associates in response to their letter dated 5.8.2011, forwarding therewith the copies of the requisite documents viz. sanctioned letter, ledger of loan accounts, statement of dues position as on 18.2.2002, is enclosed herewith and referred as annexure-2.
(iii) IDBI's letter dated 30.9.2011 addressed to the official liquidator in response to their letter dated 24.9.2011, forwarding therewith IDBI's comments to the Chartered Accountant's report dated 22.9.2011 along with copies of IDBI's form no.8 and charge certificate, is enclosed herewith and referred as annexure-3.
(iv) IDBI's follow-up letter dated 21.11.2011 addressed to the official of official liquidator, requesting to expedite the distribution of sale proceeds, is enclosed herewith and referred as annexure-4.
(v) IDBI's letter dated 15.12.2011 addressed to the official liquidator in response to their letter dated 13.12..2011, advising that IDBI has already submitted the requisite documents to their office as well as to the office of chartered accountant, with a further request to expedite the distribution of sale proceeds, is enclosed herewith and referred as annexure-5.
2. I say and submit that on personal follow-up with the office of official liquidator and the chartered accountant, from time to time, it is being confirmed by them that they have received the requisite clarification / documents from IDBI and no further requirement is pending from IDBI.
3. I say and submit that our official Shri Tarun Kumar Prasad has been regularly visiting the office of the chartered accoutant and he had been informed that the report of the chartered accountant is ready and the objections raised by the Bank of Baroda and Union Bank of India has also been deal with, but it seems that there is no instruction from the side of official liquidator to expedite the report.
4. I say and submit that IDBI is the exclusive first charger holder on the Dholka immovable properties of the company under liquidation and the said position has already been confirmed by the chartered accountant in its report dated 22.9.2011"
Now, so far as the applicant's claim that the amount of Rs.3.60 Crores (after settling Rs.15 lacs towards claim of the workers), should be available to the applicant because he has first charge over the Dholka property is concerned it is necessary to note that the Chartered Accountant has in his report made below mentioned observations:-
"First charge by way of mortgage / hypothecation of all assets (movable and immovable) at survey No.111 admeasuring about 26507 sq. mtrs. At village Jalanpur - Godhnishwar, Taluka Dholka. District Ahmedabad (Deed of Hypothecation dated 16.3.1993 and deposit of title deeds dated 18.3.1994"
In addition to the aforesaid remarks the Chartered Accountant has also made below mentioned observation in the note appended to the report:-
"(1) On the basis of the documents submitted to us, Deed of Hypothecation (DOH) for above term loan is created on 16th March 1993, however form no.8 filed for creation of charge of above loan is shown to be created on 16 th March 1994. (whereas from no.13 filed with above form no.8 shows the date as 16th March 1993). Forms and documents / filing fees creating charge and its registration with Registrar of Companies on DOH dated 16 th March 1993 is not made available to us nor any copy of DOH dated 16 th March 1993 is made available to us for which charge is now supposed to be created. IDBI has also given a copy of above form no.8 duly registered with Registrar of Companies vide document no. 117 on 20.10.1999.(2)
On perusal of another document viz. document for deposit for title deed which was created on 18 th March 1994 it is observed that mortgage by way of deposit of title deed has been created on 18th March 1994 and the same is reflected at para 6 of above form no. 8. In view of the same in opinion of IDBI since title deeds of the company's Dholka property was deposited for creation and extension of mortgage IDBI is the only first charge holder of said property and hence secured.""
16. Mr. Bhagat, learned advocate for the applicant has, with regard to the said remarks made reference of the communication dated 30.9.2011 (page 48) and submitted that the applicant had made necessary clarification with regard to the said remarks by the Chartered Accountant. He also made reference of the document at page 52 which is photo copy of the form No. 8 said to have been submitted by the applicant in the office of Registrar of Companies on 8.4.1993. The said form No.8 contains entry which gives out that the amount secured to the charge is Rs.3 Crores and for the purpose of security the charge is created by way of deed of hypothecation of goods dated 16.3.1993 and against column No.4 in the said form No.8 it is mentioned that:-
"The borrower will create charge and hypothecate the movables (except book debts) including movable machinery, machinery spares, tools and accessories present and future subject to prior charge in favour of the Bank of Baroda VSC Branch on stocks of Raw-materials, semi finished goods, consumables stores, book debts and such other movables as may be agreed to by the lenders for securing the borrowing for working capital requirement in the ordinary course of business.""
In this context reliance is also placed on the document at page 54 which is a copy of another form No.8 which is claimed to have been submitted by applicant for consideration by Chartered Accountant wherein reference of Deed of Hypothecation is made.
However, the said deed of hypothecatin is described as the deed dated 16.3.1994 and against column 6 it is mentioned that:-
"18.3.1994 no instrument was executed. A mortgage by deposit of title deeds was created by the company in favour of IDBI by deposit of title deeds with IDBI in respect of all the immovable properties of the company situated at Revenue Block No.111 admeasuring 6 Acres, 22 Gunthas i.e. 2-65-07 Hectares i.e. equivalent to 26507 Sq. Mtrs. or thereabouts situate within the village limits of Jalalpur - Godhneshwar, Taluka and Registration Sub-District- Dholka, District and Registration District - Ahmedabad in the State of Gujarat and more particularly described in the schedule annexed hereto, as security, inter alia, for the due repayment and discharge by the company to IDBI of its term loans of Rs.300 lacs together with interest, compound interest, additional interest, liquidated damages, premia on prepayment or on redemption, costs, charges, expenses and other monies payable by the company to IDBI under the said loan agreement."
It is in light of the said comments by the Chartered Accountant and aforesaid entry in the said form No. 8 that the respondent Nos. 2 and 3 have raised objection that purported claim of the IDBI as secured creditor cannot be accepted in light of the non-registration of charge allegedly created by way of Deed of Hypothecation dated 16.3.1993 for the term loan as the form no. 8 shows the date of creation charge is 16.3.1994 and not 16.3.1993.
As a result, the modification of charge effected by deposit of title deeds on 18.3.1994 in absence of registration of original charge, i.e. 16.3.1993 will also be of no avail.
The objection of respondent Nos. 2 and 3 is properly articulated in its communication dated 7.10.2011. The relevant portion reads thus:-
"The purported claim of IDBI as secured creditor cannot be accepted in view of the non-registration of charge created by way of Deed of Hypothecation dated 16.3.1993 for the term loan as the form No.8 shows the date of creation of charge as 16.3.1994 instead of correct date of creation i.e. 16.3.1993. As a result, the modification of charge effected by deposit of title deeds on 18.3.1994 in absence of registration of original charge, i.e. 16.3.1993 will also be of no avail."
17. Mr.Bhagat, learned advocate for the applicant has, relied on the document (form no.8) at page 54. However, on closure scrutiny of the said form no.8 it emerges that the said form no.8 at page 54 refers to the date of hypothecation which is dated 16.3.1994 and not 16.3.1993 as mentioned in the document at page 52.
In the aforesaid backdrop and the discrepancies it is also necessary to take into account remarks against the form no.7 (of form no.8) wherein it is mentioned that:-
"The IDBI term loan of Rs.300 Lacs together with interest, additional interest, liquidated damages, premia on prepayment, or on redemption cost, charges, expenses and all other monies payable by the company to IDBI in terms of the said loan agreement which is secured by the said Deed of Hypothecation dated the 16th day of March, 1993 being the original charge, is now also secured by the said joint mortgage by deposit of title deeds created by the company on 18th day of March, 1994 in favour of IDBI and others."
The aforesaid discrepancy leads the Court to the conclusion that the objection raised by the respondent Nos. 2 and 3 vide its communication dated 7.10.2011 cannot be ignored inasmuch as, if it turns out that the charge of the applicant bank bay way of hypothecation deed dated 16.3.1993 was never registered and the provisions under the Act as regards registration of charge were not complied with then the claim of the applicant that it has first charge over the property in question may not hold good or may not be as strong as it would have if the charge was duly registered. Under the circumstances it would not be in the interest of concerned parties to permit or direct the OL at this stage, to disburse the said sum of Rs.3.75 Crores in favour of the applicant on the assumption that (a) the applicant has first charge over the said property; and (b) that its claim amount is of more that Rs.9 Crores and consequently other secured creditors would not have any claim to receive any amount unless total dues of the applicant are cleared from the sale proceeds of the property situate at Dholka.
18. The grievance raised by the respondent Nos. 2 and 3 on the ground that the calculation of interest is also not proper cannot be ignored.
In this context it is necessary to note that the original claim amount / secured amount of the applicant is of Rs.3 Crores. The balance amount claimed by the applicant is toward interest. Having regard to the aforesaid aspects the applicant - respondent Nos. 2 and 3 were asked by the bank to submit details regarding their claims constituting only principal amount (except interest). The applicant has submitted that on the basis of the terms mentioned at page 43 that the principal amount is in the sum of Rs.3 Crores whereas the respondent No. 2 Bank of Baroda has claimed an amount of Rs.4,55,52,985 (without interest) and respondent No.3 has claimed an amount of Rs.4,03,67,593/- (without interest).
As noticed herein above, from the report filed by OL, properties at Mehsana - Ahmedabad have also disposed of, in addition to the sale of property at Dholka and sale proceeds from the sale of properties at Mehsana - Ahmedabad are also received.
Ms.Yajnik, learned advocate for the OL has submitted that total amount available for disbursement out of sale proceeds of the sale properties is Rs.4,22,00,000/-.
19. Having regard to the aforesaid discrepancies and objection raised by the respondent Nos. 2 and 3 and considering the fact that the OL is, still awaiting the report from the chartered accountant with regard to the two objections raised by the respondent Nos. 2 and 3 and also having regard to the fact that the learned advocate for the applicant has made certain serious allegations with regard to the OL's claim that Chartered Accountant has not prepared and submitted report, it is considered appropriate that the OL shall forward the details of the total sale proceeds received from the sale of the aforesaid three properties and the details about total amount presently available with the OL (including interest earned on the amount until now and also including the late-fee received by OL from the secured creditors) for the purpose of disbursement, (as per the details mentioned at page 25-26) to another Chartered Accountant from the panel maintained by the OL with specific instructions, as per the orders of the Court, that the said Chartered Accountant shall consider the claims of the secured creditor and the workers in light of the details submitted by the secured creditor and submit his opinion for the purpose of disbursement of the entire amount presently available with secured creditor. For the said purpose the Chartered Accountant shall also submit ratio at which the amount should be disbursed. While taking said decision, the Chartered Accountant shall take into account the communication dated 7.10.2011 submitted by respondent Nos. 2 and 3. The OL shall request the Chartered Accountant to submit his report on or before 13.1.2012 and same shall be placed on record of present application, in any case and without fail on 16.1.2012.
S. O. to 16.1.2012.
(K.M.THAKER,J.) Suresh*