IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY APPLICATION NO.200 OF 2008 Haryana Financial Corporation .. Applicant Versus The Official Liquidator, for M/s.Suri Papers & Chemicals Pvt. Ltd. (In Liqn.) .. Respondent Mr.M.P.Rege alongwith Rashmi Vaity i/by M/s.M.P.Rege & Co for applicant. Mr.S.Ramakantha, Dy.O.L. present. CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI J. J. J. DATE : 24th June, 2008 DATE : 24th June, 2008 DATE : 24th June, 2008 P.C. P.C. P.C. 1. This Company Application is challenging an order passed by the Official Liquidator on the claim of the petitioner. 2. It is not necessary to make a detailed reference to the claim in as much as this is the third time that the matter has been raised by the petitioner-applicant. 3. It is undisputed fact that an order has been passed winding up the company by this Court and that respondent is appointed as a liquidator who has taken possession of the assets and properties, both movable and immovable. Further, the immovable property in :2: Haryana State has been sold of. That property constitutes the security of the petitioner which is a Corporation registered under the State Financial Corporation Act. The claim is that the petitioner is the first charge holder and that the mortgage in its favour has been duly registered. Once the fact that the company is wound up was brought to its notice, the petitioner preferred this claim which was directed to be adjudicated by the liquidator. The liquidator passed the initial order which came to be set aside by this Court on 14th February, 2003. Thereafter, a re-adjudication took place and the grievance was that the re-adjudication decided the same quantum as was determined by the earlier order. In such circumstances, even the re-adjudication proceedings were challenged and this time an order was passed on 13th April, 2006 once again granting liberty to the petitioner-applicant to raise its claim. Although the petitioner-applicant could urge that its claim with interest is in the vicinity of Rs.5.72 crores approximately, ultimately, it stated that it would abide by the adjudication done in accordance with law. However, its only contention was that Rule 156 read in its entirety would clearly point out that once there is an agreement reached between the parties with regard to rate of interest, then, that rate of interest would govern the adjudication. To such a case, Rule 156 and 179 would have no application. :3: 4. The re-adjudication revolves upon this controversy and even now the grievance of the applicant is that the liquidator has committed the same error in restricting the claim of interest to 4% and not as claimed by the petitioner-applicant on the basis of its Agreement. 5. Mr.Rege appearing for the applicant-petitioner before me has contended that the controversy as to whether Rule 156 and 179 would apply and to what extent, was subject matter of decision before the learned single Judge of this Court (A.M.Khanwilkar, J). In a judgment reported in 2008(3) AIR Bom R 694 (Suryakant Babulal Mehta Vs. Shree Shakti Mills Ltd.) this Court held that Rule 156 and 179 would have no application if there is an agreement reached regarding rate of interest payable on outstanding dues. He submits that the controversy is thus covered by this decision and therefore the order of liquidator restricting the interest to 4% and relying upon Rule 179 of the Company Court Rules, 1959 in that behalf, must be quashed and set aside. 6. On the last occasion when this Court’s attention was drawn to this judgment, time was granted to the Official Liquidator to peruse the same and make his submissions. The Deputy Official Liquidator is present :4: pursuant to notice. It is not disputed that the ruling of this Court fully governs the present controversy and applies with full force thereto. However, he submits that there is a claim received from the State Bank of Patiala and the sum of Rs.2,00,000/- has been disbursed. He has set out in the latest affidavit/report the position as of today. He submits that a sum of Rs.34,57,384/- is available to the credit of the company in liquidation. 7. Mr.Rege on instructions makes a statement that even if the order passed by the liquidator is set aside and the interest is awarded as claimed and at the rate specified in agreement between the parties, even then, the applicant-petitioner would give an undertaking to the liquidator that in the event any claim including that of State Bank of Patiala is adjudicated and an order is made, he would abide by that adjudication. If necessary, the amounts would be brought back and deposited with the liquidator. 8. As far as the decision of the liquidator is concerned, it is clear that the liquidator has allowed the claim to the extent of Rs.33,88,637/- but has awarded interest at 4% from the date of winding up to the date of payment. The dispute is with regard to this rate and quantum of interest. As the law laid down by :5: this Court in the above decision is clear (paragraph Nos.15 and 17 to 19) and the fact situation in the present case being identical to that in the above ruling, the necessary corollary would be that the rate of interest which would be payable is at 15.5% per annum from the date of the order of winding up till payment. That this is the agreed rate and that the documents executed by the company in liquidation provide for the same is undisputed. In such circumstances, the order of the liquidator stands varied and the rate of interest would be at 15.5% per annum on the adjudicated sum. 9. With this modification to the order passed by the liquidator, the claim of the petitioner-applicant stands disposed of. The order of the liquidator stands modified accordingly. However, the applicant shall submit an undertaking to the liquidator within a period of four weeks from today that in the event the liquidator adjudicates the claim of other creditors including State Bank of Patiala, the petitioner-applicant would abide by the same and if necessary, bring back and redeposit the sums as directed by the liquidator. Upon furnishing of this undertaking liquidator to release the balance amount. All concerned to act upon an authenticated copy of this order. :6: (S.C.Dharmadhikari, J)