K.R. Shriram, J. - (1.) In this official liquidator's report, the liquidator is seeking the following directions : (a) In view of para (22 & 24) above, whether this Hon'ble Court would be pleased to permit the Official Liquidator to reimburse an amount of Rs.7,63,203/- (Rs.10,87,605/-)and Rs.1,76,915/- to SICOM (after adjusting the recovery) and Canara Bank respectively towards security Expenses under section 476 of the Companies Act, 1956; (b) In view of para (23) above, whether this Hon'ble Court would be pleased to permit the Official Liquidator to declare and pay a dividend @ 20.539% amounting to Rs.16,08,143/- (Rs.17,85,058/) to Canara Bank subject submission of an undertaking to bring back the amount along with interest as and when demanded by the Official Liquidator for settlement of any worker claim in future; (c) In view of para (27) above, whether this Hon'ble Court would be pleased to permit the Official Liquidator to open a 'Separate Dividend Account' with Punjab National Bank, Punjab National Bank House, Fort, Mumbai with a sum of Rs.16,08,143/- (Rs.17,85,058/-) under Rule 290 of the Companies (Court) Rules, 1959 for making payment of dividend to Canara Bank and the dividend shall be payable for a period of six months from the date on which the directions/orders are given by this Hon'ble Court for Declaration of Dividend and thereafter to transfer the unpaid/unclaimed dividend, if any, to the "Companies Liquidation Account" maintained with the Registrar of Companies, Maharashtra, Mumbai under Section 555 of the Companies Act, 1956; (d) In view of para (28) above, whether this Hon'ble Court would be pleased to permit the Official Liquidator to dispense with the requirements of Rule 276 of the Companies (Court) Rules, 1959 and to issue the dividend notice to Canara Bank by "Speed Post" to their last known addresses; (e) In view of para (29) above, whether this Hon'ble Court would be pleased to direct SICOM to deposit with the Official Liquidator, interest on amount of sale proceeds of immovable Rs.31,11,101/- for the period of 5 year and one month at the rate as may be decided by this Hon'ble Court."
(2.) Two issues arise in this report, viz., (a) Whether the secured creditors such as SICOM and Canara Bank are entitled to seek recovery/reimbursement of amounts spent by them towards security charges for protecting their security? and (b) Whether the amounts paid by the guarantor to the creditor is to be credited even against the amounts due and payable by the principal debtor to the creditor?
(3.) On 3rd October 1991, this Court passed an order in Company Petition No.480 of 1988, by which the RespondentCompany M/s. Trimbak Ispat Private Limited was ordered to be wound up and the Official Liquidator attached to this Court was appointed as Liquidator thereof with usual powers under the Companies Act, 1956. The Official Liquidator on 19th October 1991, went to take possession of the factory and the movables situated at 395/8 Bombay Agra Road, Nasik. It was noted that SICOM had already taken possession of the said premises and had deployed its security guards. The Liquidator also took possession, as can be seen from the panchanama, however, the security continued to be that of SICOM. During 1991-1992, SICOM, which claimed to be a secured creditor in respect of certain movable and immovable assets, had taken out Company Application No.279 of 1992 for permission to sell the assets. Similarly even Canara Bank had filed Company application no.351 of 1991 for sale of its secured assets. On 30th April 1994, order was passed directing the Official Liquidator to sell the Company's property mortgaged to SICOM. On 16th November 1995, this Court passed the order, fixing the price for selling immovable properties. On 6th December 1995, advertisement was published in the newspapers for sale of the movable properties. On 25th July 1996, an order was passed confirming sale of the plant and machinery, which was the security of SICOM and Canara Bank. Security of SICOM was sold for a sum of Rs.20 Lakhs and the security of Canara Bank was sold for a sum of Rs.9,02,000/-. The Official Liquidator has invested the entire consolidated saleproceeds in Fixed Deposits and the same have been renewed from time to time. As on the date of OLR No.96 of 2017, a sum of Rs.58,09,089/- is available with the Official Liquidator. In 1996 1997, the Official Liquidator had invited claims of workers and creditors as per Rule 148, by giving advertisement in the newspapers. The last date for inspection of the claims was 5th November 1997. No claims of any workers was received. On 9th August 2006, SICOM lodged its claim with the Official Liquidator for a total sum of Rs.47,25,598/- of which principal was Rs.22,76,366/- and interest upto 3rd October 1991 (date of winding up) amounted to Rs.24,49,232/-. On 29th February 2008, The Official Liquidator passed an order adjudicating SICOM's claim and admitted SICOM's claim for the said sum of Rs.47,25,598/-. On 22nd June 2010, SICOM, without the knowledge and consent of the Official Liquidator, unlawfully assigned the leasehold rights of the RespondentCompany to Balasaheb Patil & Associates in violation of Section 536 of the Companies Act for a sum of Rs.31,11,101/-. On 2nd February 2011, Canara Bank lodged its claim and filed its Affidavit of proof of debt, claiming a sum of Rs.69,90,782.68 along with interest thereon at 12% per annum. On 14th March 2011,the Official Liquidator passed an order and adjudicated and admitted the claim of Canara Bank for an amount of Rs.78,29,676/-. During 2nd April 2012 to 25th April 2012, the Official Liquidator addressed letters to SICOM, calling upon them to indicate as to how they transferred the property. On 26th May 2015, the Official Liquidator issued a Show Cause Notice to SICOM with regard to the unlawful alienation of the leasehold rights of the property of the RespondentCompany in liquidation. On12th August 2015, SICOM tendered an unconditional apology. Around the same time, SICOM filed Company Application No.549 of 2015 to challenge the adjudication of its claim of Rs.47,25,598/- and claimed that it was, in fact, entitled to Rs.21,27,82,666.50 along with reimbursement of security charges of Rs.23,88,857/-. On 30th June 2015, this Court passed an order, rejecting SICOM's Application and upholding the adjudication made by the Liquidator of Rs.47,25,598/-and directed SICOM to submit proof of the security charges allegedly paid by it. On 9th September 2015, the Official Liquidator rejected the claim of SICOM for Rs.23,88,857/-towards security charges and allowed only Rs.10,87,605/-as security charges payable to SICOM. On 4th January 2017, SICOM undertook to this Court to deposit the said sum of Rs.31,11,101/-with the office of the Official Liquidator and has, in fact, deposited the said sum of Rs.31,11,101/-with the Official Liquidator on 17th January 2017. On 20th April 2017, present Official Liquidator's Report has been filed for declaration of dividend.;