1 931.chs.944.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ata CHAMBER SUMMONS NO.944 of 2010 IN SUIT NO.3409 of 2002 Bank of India .. Plaintiff V/s. The Official Liquidator attached to the Hon’ble Madras High Court of M/s.J.K.Pharmachem Ltd and ors .. Defendants AND The Court Receiver,High Court,Bombay ..Respondent _____________________ Mr.Vishal Kanade i/b V.Deshpande and Co,for the plaintiff Adv.Dhaval Deshpande i/b Thakore Jariwala and Associates, for the respondent CORAM :R.M.SAVANT J. DATE :21st March,2011 P.C.:- By the above Chamber Summons the plaintiff claims the following relief: “that the Court Receiver be ordered and directed to handover to the Plaintiff within such time as may be fixed by this Hon’ble Court, the sale proceeds of Rs.31,81,70,200/- along with accruals thereon received from the sale of the fixed and movable assets of the 2 931.chs.944.10.sxw Company (In Liquidation) so as to enable the plaintiff to distribute the same amongst the beneficiaries under the debenture series as detailed in the Plaint” 2) The Plaintiff has filed the above Suit in it’s capacity as Debenture Trustees, against the defendant no.1 which is in liquidation, for enforcement of the mortgage securities and for recovery of Rs.97,50,90,212/-, due and payable as on 24th September, 2002 to the Debentures Holders under the Trust Deeds together with further interest at the contractual rate till payment / realization and for further incidental reliefs. 3) By an order dated 8th August, 2005 passed in Notice of Motion No.2016 of 2005 filed by the plaintiff, the Court Receiver High Court,Bombay was appointed as Receiver in respect of the suit securities as described in Exhibit “A”, “B”, and “C” to the plaint and the Court Receiver was directed to dispose of the said securities by public auction in the first instance. In view of the fact that the official liquidator came to be appointed by an order dated 24th April, 2006 passed in Company Application No.32 of 2006 filed for winding up by one M/s.Sukhjit Starch and Chemicals Ltd against the defendant no.1, in the Madras High Court, the plaintiff moved an application before the Madras High Court being Company 3 931.chs.944.10.sxw Application No.53 of 2007 under section 446 of the Companies Act to continue with the above suit and to implead the official liquidator as a party defendant in the suit. The said application filed by the plaintiff came to be allowed by an order dated 16th March, 2007. Accordingly, the official liquidator, Madras High Court was made a party defendant to the Suit. By order dated 6th September, 2007 , this court directed the Court Receiver to proceed to conduct sale in terms of clause 17(a). Suffice it to say that the Court Receiver in terms of the order passed by this court had put up three suit properties for public auction under three separate lots, which were as under. Lot I) Immovable Property situate at Cuddalore, Tamilnadu Lot II) Immovable property situate at Kalol,Gujarat Lot III) Movable property situated at Coimbatore, Tamilnadu 4) The said properties were to be auctioned as per Public Notice dated 1st October, 2008 and on the terms and conditions of sale fixed by this court. Though pursuant to the earlier auction notice, no offers were received, however pursuant to the notice dated 22nd January, 2009 offers were received for all the lots, as disclosed in paragraph nos.10 to 13 of the affidavit in support. The total proceeds from the said sale of lots I, II 4 931.chs.944.10.sxw and III are mentioned in paragraph 17 i.e. the sum of Rs. 31,81,70,200/-. The plaintiff seeks withdrawal of the said amount on the ground that on such sale the said amount would be held by the plaintiff in trust and that out of the said amount of the sale proceeds reimburse themselves and pay, retain , or discharge all the cost, charges and expenses in enforcement of mortgaged security and to receive their arrears of trusteeship remuneration, and the residue of the same shall be applied firstly in or towards payment of the Debenture Holders pari passu of all arrears of interest including time overdue interest and secondly in or towards payment to the Debenture Holders pari passu of all principal monies owing on the debentures held by them an thirdly, in or towards the payment of surplus of such money to the persons or persons entitled thereto. 5) The above Chamber Summons had come up for hearing on 9th March, 2011 when the counsel appearing for the official liquidator-Madras High Court had taken time to seek instructions from the official liquidator. The learned counsel appearing for the Official Liquidator states today that he has received written instructions from the official liquidator and tenders a copy of the letter dated 18.03.2011 addressed by him to the Advocates Mr. Thakore Jariwalla and Associates. The last paragraph of the said letter states that since the 5 931.chs.944.10.sxw official liquidator has not received any claims from the ex- workers of the company in liquidation, the applicant, Bank of India may be directed to give an undertaking to the effect that if any claims are received by the official liquidator from the ex- workers of the company the amounts to the said extent would be refunded by the plaintiff. The leaned counsel appearing for the official liquidator states that though the claims have been made before the official liquidator the said claims as of date are by the unsecured creditors. 6) Considering the above, in my view, the plaintiff would be entitled to the relief in terms of prayer clause (b) restricted to a sum of Rs.25 crores. The balance of the said sale proceed would lie in deposit with the Court Receiver pending adjudication if any of the claims made before the Official Liquidator. The plaintiff would be entitled to file a further application for withdrawal if the receiver is having funds after the claims of the parties have been satisfied. The fact that the plaintiff has been allowed to withdraw only sum of Rs.25 crores would not come in it’s way in filing the further application. 7) The above Chamber Summons is accordingly allowed and made absolute in terms of prayer clause (b) restricts to a sum of Rs.25 crores. The amounts mentioned in prayer (c) would be appropriated against the amount of Rs.25 crores which is 6 931.chs.944.10.sxw allowed to be withdrawn. The official liquidator may approach this court by way of an application, if he receives any claim on behalf of the workers or any other secured creditors within a period of two months from date. The parties to act upon a copy duly authenticated by the Court Associate. (R.M.Savant,J.)