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Ms. Lodha has further submitted that the applicant Bank in joint participation with Bank of Baroda had granted various credit facilities to the company in liquidation and the said credit facilities are secured by the movable and immovable assets of the Company in liquidation. The outstanding dues of the applicant Bank as on the date of winding up of the Company in liquidation i.e. 9.3.2005 are to the tune of Rs.1,24,54,004/-. The applicant Bank has filed Original Application No.156 of 2005 against the Company in liquidation and others before the Debt Recovery Tribunal, Ahmedabad for a sum of Rs.1,36,90,400/- with future interest and costs and which has been allowed with simple interest @ 7% thereon from 1.8.2005 until realization and costs vide judgment and order dated 27.4.2009 holding inter alia that the applicant Bank and respondent No.2 are having first pari passu charge on the current assets i.e. stocks and book-debts and the applicant bank and respondent No.3 have pari passu charge on the properties being factory land, building plant and machinery of the Company in liquidation. She has, therefore, submitted that the applicant is a secured creditor having first charge on pari passu basis on the assets of the Company-in-liquidation. She further submitted that the amount Rs.814 lacs has been lying with the office of Official Liquidator since August, 2008.

Mr. R.M.Desai, learned advocate appearing for IDBI Trusteeship Services Ltd., respondent No.3 herein has disputed the claim of the applicant Bank to be the first charge holder on the assets of the Company in liquidation and also disputed the report of the Chartered Accountants considering the respondent No.3 as the second charge holder. He has submitted that the respondent No.3 is secured creditor of Company in liquidation having first charge. The applicant Union Bank of India and/or Bank of Baroda and/or any of the Financial Institutions are second charge holders. He has further submitted that any amount to be distributed to Union Bank of India and/or Bank of Baroda only after dues of respondent No.3 are satisfied. The amount lying with the Official Liquidator is required to be distributed between the respondent No.3 and the workers as per provisions of law. He has further submitted that dues of Banks and Financial Institutions in respect of term loan facility are settled and as such assets which are sold are secured in favour of the respondent No.3 as first charge holders and Union Bank of India and/or Bank or Baroda are not entitled to participate in the distribution. He has further submitted that Union Bank had pari passu charge for their term loan and not for working capital facilities. The pari-passu charge is satisfied. The working capital facilities were secured by way of second charge pari-passu with Bank of Baroda. The respondent No.3 had agreed for sharing of sale proceeds on pari-passu basis for term loan and not for working capital facilities.

It is true that the applicant Bank, in its Original Application No.156 of 2005 filed before the Debt Recovery Tribunal, Ahmedabad has stated that the Company in liquidation has mortgaged its movable plant and machinery and immovable properties situate at B/1 to B/3, GIDC Electronics Estate, Gandhinagar to the applicant Bank and Bank of Baroda to secure the working capital facilities advanced to the Company in liquidation by way of second charge on pari-passu basis with Bank of Baroda subject to the first change of Industrial Development Bank of India, Industrial Finance Corporation of India, Industrial Credit and Investment Corporation of India Ltd., Bank of Baroda and the applicant Bank for their respective term loans/foreign currency loans. However, the said loans of the said Financial Institutions appeared to have been repaid. It is equally true that the respondent No.3 has filed its written statement in the said Original Application No.156 of 2005, wherein, it is stated that the charges and mortgages created by the Company in liquidation on all its fixed assets, in favour of the present respondent No.3 for securing the debentures are to be ranked as first charge in favour of the present respondent No.3 and the applicant Bank, without any preference or any priority of one over the other or others. It is also stated by the respondent No.3 that whatever amounts paid and/or to be paid by the Official Liquidator to the applicant after filing of the said application, are required to be shared by the applicant with the respondent No.3 on pro-rata basis.

Based on the above pleadings of the parties the Debt Recovery Tribunal in its order dated 27.4.2009 held that the applicant and respondent No.2 i.e. Bank of Baroda have first pari-passu charge over the assets described in Schedule-I of the application, which refers to description of hypothecated movable properties of the Company in liquidation. It is further held by the Debt Recovery Tribunal that the applicant, respondent No.2 and respondent No.3 have first pari-passu charge over the properties described in Schedule-II of the application, which refers to the description of movable and immovable properties of the Company in liquidation mortgaged by way of second charge.