Gujarat High Court
Gujarat Industrial Investment ... vs Official Liquidator Of Global Arya ... on 31 August, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
O/COMA/244/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY APPLICATION NO. 244 of 2013
In COMPANY PETITION NO. 106 of 2002
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GUJARAT INDUSTRIAL INVESTMENT CORPORATION LTD.....Applicant(s)
Versus
OFFICIAL LIQUIDATOR OF GLOBAL ARYA INDUSTRIES
LTD....Respondent(s)
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Appearance:
MR RD DAVE, ADVOCATE for the Applicant(s) No. 1
MR JS YADAV, ADVOCATE for the Respondent(s) No. 1
OFFICIAL LIQUIDATOR for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 31/08/2015
ORAL ORDER
1. By way of this application, the
applicant has taken out the Judges' Summons
wherein the applicant has prayed for the
following reliefs:
"A. This Hon'ble Court may be pleased to direct the Opponent Official Liquidator to pay an amount of Rs.11,16,37,734/- (Rupees Eleven crores Sixteen lacs Thirty Seven thousand Seven hundred Thirty Four only) outstanding as on the date of winding up i.e. 27-04-2006, to the Applicant Gujarat Industrial Investment Corporation Ltd. ("GIIC" for short) forthwith together with interest thereof or any other amount required to Page 1 of 8 HC-NIC Page 1 of 8 Created On Wed Sep 02 01:31:08 IST 2015 O/COMA/244/2013 ORDER be disbursed and paid to the Applicant.
B. Pending hearing and final disposal of this Application the Opponent Official Liquidator may be directed to disburse and pay Rs.11,16,37,734/- (Rupees Eleven crores Sixteen lacs Thirty Seven thousand Seven hundred Thirty Four only)outstanding as on the date of winding up i.e. 27-04-2006, to the Applicant GIIC forthwith together with interest thereof or any other amount required to be disbursed and paid to the Applicant.
C. xxxxx"
2. Heard learned advocate Mr.Dave for the applicant and learned advocate Mr.Yadav for respondent-Official Liquidator.
3. Learned advocate Mr.R.D.Dave for the applicant pointed out that this Court passed an order on 27.4.2002 in Company Petition No.106 of 2002 whereby Global Arya Industries Limited was ordered to be wound up and the Official Liquidator attached with this Court was appointed as Liquidator of the said company. The Liquidator had taken over the possession of the assets and properties of the company in liquidation. Thereafter, the Official Liquidator filed OLR No.162 of 2002 for the sale of the assets of the company including building, plant and machineries as well as other movables of the company in liquidation including survey no.202/3 P of village Veraval (Shapar), Taluka Kotda Sangani, Page 2 of 8 HC-NIC Page 2 of 8 Created On Wed Sep 02 01:31:08 IST 2015 O/COMA/244/2013 ORDER District Rajkot. The advertisement was issued for the sale of the aforesaid property and reserve price was fixed at Rs.64 lacs. It is pointed out that this Court passed an order on 30.8.2007 whereby this Court confirmed the sale in favour of the present petitioner who has given the highest offer of Rs.127 lacs. Thereafter, Company Application No.450 of 2007 was filed by one Shraddha Aromatics Private Limited and requested to recall the order. The said application was dismissed by the Company Judge. Another application was filed for the same prayer and the said application was allowed against which O.J.Appeal No.80 of 2007 was filed. The said appeal was decided on 28.6.2007 and the parties were permitted to raise their offers. The appeal was decided in favour of the successful bidder. Thereafter, the said matter went to the Hon'ble Supreme Court. The Hon'ble Supreme Court accepted offer of the highest bidder i.e. offer of Rs.7.60 crores on certain terms and conditions. The said order was passed by the Hon'ble Supreme Court on 24.5.2011.
4. Learned advocate Mr.Dave thereafter pointed out that the applicant GIIC is a secured creditor. GIIC lodged its claim before the Official Liquidator with necessary document and proof. It was pointed out to the Official Liquidator that applicant GIIC is entitled to claim Rs.11,16,37,734/- i.e. outstanding amount Page 3 of 8 HC-NIC Page 3 of 8 Created On Wed Sep 02 01:31:08 IST 2015 O/COMA/244/2013 ORDER as on the date of order of winding up (upto 27.4.2006). It is alleged in the affidavit filed in support of Judges Summons that the applicant requested time and again to the Official Liquidator that the claim of the applicant be decided as the applicant is the only secured creditor but no decision is taken by the Official Liquidator. It is, therefore, requested that the Official Liquidator be directed to pay an amount of Rs.11,16,37,734/- to the applicant with interest or any other amount be disbursed and paid to the applicant.
5. On the other hand, learned advocate Mr.Yadav appearing for the Official Liquidator has referred to the report dated 23.1.2014 filed by the Official Liquidator and submitted that the applicant submitted its claim on 6.2.2012 in the prescribed form no.66. However, the Official Liquidator has not invited the claims from the creditors of the company and, therefore, the advertisement was issued in the concerned newspapers. After the advertisement was published in the newspapers, the Official Liquidator has not received any claim. Thus, it was revealed that the applicant was the only secured creditor of the company in liquidation. The Official Liquidator, thereafter, sent the claim lodged by the applicant with necessary documents for its verification to the concerned Chartered Accountant. He asked for certain further details Page 4 of 8 HC-NIC Page 4 of 8 Created On Wed Sep 02 01:31:08 IST 2015 O/COMA/244/2013 ORDER which were supplied to him. It was revealed from the statement of affairs that the applicant is a secured creditor of the company to the extent of Rs.1,69,21,744/-. Learned advocate Mr.Yadav thereafter referred to another report dated 21.11.2014 filed by the Official Liquidator and submitted that the report is thereafter received from the concerned Chartered Accountant on 6.11.2014. The said Chartered Accountant has certified that an amount of Rs.11,16,37,734/- is due and payable to the applicant. He further contended that the applicant granted term loan of Rs.1,38,00,000/- to the company in liquidation vide sanction letter dated 26.8.1992. The same was rescheduled at the request of the company in liquidation vide sanction letter dated 27.3.1998. It is pointed out that the applicant is calculating the interest @21% and penalty and therefore the amount of Rs.11,16,37,734/- is claimed by the applicant. He further pointed out that as per the order dated 30.3.2015 passed by this Court, the Official Liquidator released the undisputed amount of Rs.1,69,21,744/- to the applicant on adhoc basis and this Court further directed the Official Liquidator to get necessary documents from the applicant. The direction was given to send the details to the concerned Chartered Accountant for reverification. Necessary documents were supplied to the Official Liquidator by the applicant. The same were sent to the concerned Chartered Accountant for Page 5 of 8 HC-NIC Page 5 of 8 Created On Wed Sep 02 01:31:08 IST 2015 O/COMA/244/2013 ORDER reverification and now the said Chartered Accountant has given the report on 27.5.2015 wherein also it has been stated that the applicant is eligible to get an amount of Rs.11,16,37,734/-. However, learned advocate Mr.Yadav contended that the rate of interest @21% p.a. and penal interest @4% claimed by the applicant is very high and this Court may not decide the said issue at this stage and this issue be kept open. It is pointed out that the Official Liquidator is having fund of Rs.7,76,22,286/- realized from the sale of assets of the company after making adhoc disbursement of Rs.1,69,21,744/-. He submitted that the Official Liquidator be permitted to disburse the amount to the only secured creditor i.e. the applicant after deducting Rs.1 lakh for miscellaneous expenses on furnishing usual undertaking by the applicant.
6. I have considered the arguments canvassed on behalf of the learned advocates for the parties. I have also gone through the documents produced on record.
7. From the record, it reveals that the applicant is the only secured creditor at this stage as nobody has lodged the claim before the Official Liquidator in pursuance to the advertisement issued by the Official Liquidator. The principal amount is Rs.1,69,21,744/-.
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O/COMA/244/2013 ORDER
However, the interest @21% is calculated as well as penal interest @4% is calculated by the applicant and, therefore, as on the date of the order of winding up, the applicant was entitled to get an amount of Rs.11,16,37,734/- out of which undisputed amount was already disbursed i.e. Rs.1,69,21,744/- to the applicant as per the order passed by this Court. It is further clear that at present, the Official Liquidator is having fund of Rs.7,76,22,286/-.
8. In view of the above, the applicant shall file usual undertaking before the office of the Official Liquidator within a period of two weeks from the date of receipt of this order. After receipt of the usual undertaking from the applicant, the Official Liquidator is permitted and directed to disburse the amount of Rs.7,75,00,000/- in favour of the applicant by RTGS within a period of two weeks from the date of receipt of the undertaking from the applicant. The contention of learned advocate for the Official Liquidator with regard to rate of interest, method of calculation of interest and penalty are kept open. It is open for the Official Liquidator to raise the said contention at appropriate stage. The contentions of both the parties on the said issue are kept open.
9. With this observation and direction, this application is disposed off.
Page 7 of 8 HC-NIC Page 7 of 8 Created On Wed Sep 02 01:31:08 IST 2015 O/COMA/244/2013 ORDER (VIPUL M. PANCHOLI, J.) Srilatha Page 8 of 8 HC-NIC Page 8 of 8 Created On Wed Sep 02 01:31:08 IST 2015