Prakash Krishna, J. - (1.) FEELING aggrieved by the order dated 23rd of November, 2007 passed by the Claims Committee rejecting the claim of the present applicant, the present petition has been filed under Rules 6 and 9 of the Company (Court) Rules, 1959. The facts in brief are as follows:
(2.) AIR Force Naval Housing Board (hereinafter referred to as the Board), registered under the Societies Registration Act, 1860 with the object to promote suitable housing scheme for serving AIR Force and Naval on all India basis made a fixed deposit of Rs. 1 crore on 13th of October, 1986 for a period of 12 months with interest at the rate of 15% per annum with M/s. Premier Vinyl Flooring Limited. The said company was ordered to be wound up by this Court by the order dated 12th of March, 2003. The Official Liquidator attached to the Court took the possession of the assets of the company. A claim for refund of principal amount with accrued interest was filed before the Claims Committee which was constituted for examining the claims of the creditors, secured and unsecured against the company in liquidation. The Claims Committee found that the present applicant was a non-secured creditor and due to the paucity of fund rejected the claim by the order dated 23rd of November, 2007. The said order is under challenge in the present petition. The Official Liquidator in reply submits that the authenticity of the said facts of fixed deposit receipt is subject to the production of the original receipts and verification thereof, that the claim of the applicant in accordance with the Sections 529, 529-A and 530 of the Companies Act, was considered and rightly rejected. Shri Dhruv Narain, advocate, learned counsel appearing in support of the present petition submits that the deposit made with the company in liquidation was in the nature of a trust. The money belongs to the applicant and there was no I relation of creditor and debtor in between the applicant and the company in liquidation. Elaborating the argument he submits that the said money belongs to the applicant and as such the applicant is entitled for the same and has preferential claim over all the claims of the creditors even above the secured creditors. He submits that on the facts of the present case the law of trust came into operation and entrustment of money itself clearly created a trust for specific purpose so as to impress upon the money as a trust, express or construction in favour of the applicant. Strong relation was placed by him on Official Liquidator v. N. Chandra Narayanan, (1973) 43 Comp Cas 244. Shri Raj Nath N. Shukla, advocate, on behalf of the Official Liquidator, on the other hand, submits that the deposit made by the appellant was in the nature of Fixed Deposit for a period of 12 months at the rate of 15 per cent interest to mature on 30th October, 1997. It, according to him, was a commercial transaction and a relationship of creditor and debtor in between the company in liquidation and the depositor was created. The company in liquidation was authorize to utilize the money as per its requirement and had complete dominion and control over the amount. Reliance has been placed by him on a Division Bench decision of this Court in Jessa Ram Fatehchand v. Official Liquidator and others, AIR 1962 All 370, which has been approved by the Apex Court in M/s. Rai Bahadur Seth Jessa Ram Fatehchand v. Om Narain Tankha and another, AIR 1967 SC 1162.
(3.) SHRI Om Prakash Mishra, learned counsel for secured creditors such as IFCI Ltd., IDBI Bank Ltd., etc. submits that there is no provision under the Companies Act and the Company (Court) Rules, 1959 for payment in priority to the debts like the appellant who has claimed it as a sum deposited with the company to be held in trust by the company. Considered the respective submissions of the learned counsel for the parties and perused the record. Few facts which are not much in dispute that are as follows: A sum of Rs. 1 crore was deposited by the appellant with the company in liquidation, carrying on an interest at the rate of 15 per cent per annum. The said company failed to repay the said amount on maturity i.e. on 30th October, 1997. The company has been ordered to be wound up and the Official Liquidator attached to the Court has taken possession of the assets of the Company in liquidation. The terms of deposit, if any, is not on the record of the case. Nor it is the case of appellant that the company in liquidation in any manner was prohibited to mix up the said deposit with the other funds of the company in liquidation.;