TaxTMI 
TaxTMI 
2012 (6) TMI 371
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....h manner as this hon'ble court may decide. (b) this hon'ble court may be pleased to approve with or without . . ., the draft advertisement for sale and also the draft terms and conditions of sale annexed with the affidavit in support of this summons." 2. The State Bank of Saurashtra, which, now, after merger, is the State Bank of India, i.e., present respondent, was one of the respondents in the said application. 3. During the proceedings which ensued, respondent No. 2 bank had participated in that proceeding and was heard. 4. During the pendency of the said application, the official liquidator had filed a report dated September 29, 2005, wherein it was mentioned in paragraph 1 of the report that : "That, this hon'ble court vide orders dated November 2, 2004 and April 25, 2005, was pleased to permit the official liquidator to appoint a chartered accountant for the purpose of verification of workers' claim lodged by the applicant Union. That, accordingly M/s. C. Joshi and Co., Chartered Accountant, Porbandar, were appointed by the official liquidator to verify the workers claim and to submit a verification report. The said chartered accountant, after verification of t....
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...., 2006, directed the official liquidator to check up and verify the calculations given in the official liquidator's report dated September 30, 2005 and to submit a correct report regarding admissible claim of workers of the company. That, in this connection the official liquidator most respectfully submits that the calculations given in the official liquidator's report dated September 30, 2005, have been checked and verified with reference to the report of the chartered accountant. That, the correct position of the workers' claim is as mentioned hereinafter in this report." 9. In the said report the official liquidator stated that the claim raised on behalf of 2,906 workers was placed before the chartered accountant for verification and after verification it was reported that the claim admissible for the purpose of section 529A of the Companies Act would come to Rs. 34,85,47,106 whereas, the claim to the tune of Rs. 5,47,50,284 would not be admissible for the purpose of section 529A which would qualify as ordinary or other claims. The certificate of the chartered accountant to the aforesaid effect was part of the said OLR dated January 23, 2006 and it appears that copy of the sa....
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....the workers has submitted that the said order has not been carried in appeal. Thus, the said order has attained finality after four years since it was passed. 15. Even at the cost of repetition it is necessary to again record, particularly in view of the objection (against disbursement) now being raised by the respondent-bank that at the relevant time any affidavit objecting the contents of the report filed by the official liquidator does not appear to have been filed by the respondent bank in respect of OLR dated September 29, 2005 and/or OLR dated January 23, 2006. 16. The details mentioned in the said report have remained uncontroverted and undisputed. By the former reports it was submitted by the official liquidator that the admissible limit of the claim of workers, for the purpose of section 529A of the Act was Rs. 35,09,55,245 and then in the later report, i.e., OLR dated January 23, 2006, the said figure was revised to Rs. 34,85,47,106. 17. The said details were never disputed and during the interregnum of five years, i.e., from January, 2006 to July, 2011, the respondent-bank does not appear to have responded, in any manner, as regards the said details and does not....
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....ve now claimed, in addition to the other claim, further amount towards PF as well. It is submitted that in view of the subsequent decisions including the decision of the apex court holding that amount towards PF also can be claimed, that the new claim is raised for consideration. 23. By order dated May 4, 2011, notice to the respondents was issued in present company application. It is claimed that in July, 2010 sale of certain assets was confirmed and somewhere in December, 2010 the official liquidator has received a sum of about Rs. 10 crores from sale of assets. Prior to that, a sum of Rs. 2.70 crore was realised somewhere in 2009 by selling one of the immovable properties. 24. In response to the present application, the official liquidator filed report dated May 11, 2011, stating, inter alia, as under : "(2) That, the hon'ble High Court vide order dated August 7, 2009, passed in Official Liquidator Report No. 70 of 2005, permitted the official liquidator to sell all the properties of the said company under the Companies Act, 1956 read with rules 272 and 273 of Companies (Court) Rules, 1959, by an advertisement in the newspapers fixing the upset price, earnest money depo....
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.... and the total claim amount of secured creditors is rounded up to the nearest higher amount, then the position which would emerge is that the workers' claim admissible within eligible limit of section 529A, prima facie and on ad hoc assessment, would come to Rs. 34.85 crores while the entire claim of all the secured creditors put together would come to about Rs. 12 crores. 29. It is in this backdrop that on behalf of the workers' request ad hoc disbursement is made by the Union, which admits disbursement in favour of the secured creditors as well. 30. Learned counsel for IDBI Bank and Central Bank of India have stipulated that if ad hoc disbursement, keeping in focus their claim amounts, is made without prejudice to the contentions and subject to the determination of final ratio for disbursement, then the said secured creditors do not have any objection against such ad hoc disbursement out of the amount presently available with the official liquidator. 31. So far as the State Bank of India is concerned, it is substituted in place of the original respondent the State Bank of Saurashtra. The respondent State Bank of India has raised objection against request for such ad hoc ....
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....hat the complete set of claim papers along with supporting documents will be provided by each secured creditors by today evening, i.e., July 9, 2011, to the said chartered accountant to arrive at ad hoc disbursement ratio and the said chartered accountant will give his report by July 13, 2011. A copy of minutes dated July 9, 2011, is annexed hereto and marked as annexure A." 33. It transpires that in pursuance of the aforesaid order dated July 7, 2011, the official liquidator convened the meeting on July 9, 2011, which as per the minutes of the meeting, was attended by all secured creditors including the respondent State Bank of India. 34. In the said minutes dated July 9, 2011, it is, inter alia, recorded that : "pursuant to the hon'ble court's order dated July 7, 2011, passed in the matter, the representative of workers and secured creditors are present. The chartered accountant M/s. C. Joshi and Co., Porbandar, who has carried out verification of workers' claim, was approved . . ." 35. On behalf of the official liquidator, learned counsel has submitted that the said minutes of meeting was forwarded to all the secured creditors and until now any objection with regard ....
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....vits controverting the said reports were not filed by the bank at the relevant time. 41. It is also necessary to recall that in October 2007, the court had directed to consider the claim of the workers to the extent of admissible limit and the said order has also not been challenged by the respondent-bank. 42. What emerges is the fact that the verification made by the chartered accountant and the certificate certifying that the workers' claim which qualify for the purpose of section 529A, at least to the extent of Rs. 34,85,47,106 has not been disputed by the respondent-bank since 2006 until now. 43. However, now, when request for ad hoc disbursement is made which is, in turn, not disputed by the other two secured creditors subject to their contentions and final determination of the entire admissible claim and ratio for disbursement, respondent No. 2 bank has, after all these years, sought to raise objection as regards the verification report and as regards the amount of claim by the workers. Objection is also raised with regard to the request for ad hoc disbursement. Reliance is placed on the provisions contained in rules 163 to 168 and 176 of the Companies (Court) Rules,....
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....fication of workers' claim as contained in the report of the CA made in 2005 is not disputed. (d) It is also not claimed in the said affidavit by the State Bank of India that those reports of 2005 and 2006 were not made available at the relevant time or at any stage. (e) Even if the claim of the State Bank of India that the report of chartered accountant M/s. Vibhakar J. Trivedi and Co., was not made available to it at any point of time earlier, the fact remains that the said report was made part of the OLR dated July 20, 2011, as its annexure and that was served to the learned advocate appearing for the respondent State Bank of India and thereafter the affidavit dated July 25, 2011, came to be filed by the State Bank of India. (f) In the said affidavit also it is not alleged that along with the OLR dated July 20, 2011, the chartered accountant's report dated July 13, 2011, was not served on them. (g) Furthermore, as noticed hereinabove also, in paragraphs Nos. 2 to 5 of the said affidavit dated July 25, 2011, the State Bank of India has not made any averments disputing the claim amount admissible to the workers for the purpose of section 529A, as determined by the CA. ....
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....from the sale proceeds is made, and for that purpose, before the ratio for disbursement is determined on the basis of admissible claim, the procedure prescribed under the Rules including the aforesaid Rules which, inter alia, provide that the official liquidator should undertake investigation as to the claims and for that purpose invite objections and take/declare his decision which would be appealable by the aggrieved creditor and only thereafter, upon issuance of necessary notice, the disbursement can be made. When the said Rules are examined, it emerges that the said Rules do not prohibit ad hoc disbursement on the basis of an ad hoc ratio which may be determined inter se with consensus of the secured creditors and the workers or by the court at the suggestion of the official liquidator, more particularly, when the entire assets of the company are not yet sold out and further sale proceeds out of sale of other assets is yet to come in the hands of the official liquidator and when despite winding up order having been passed almost 22 years before, any secured creditors or workers are not paid any amount then in such circumstances, in view of this court, there is no prohibition un....
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....by this court at the time when disbursement is to be ordered", and the same order was not and has not been challenged by the respondent State Bank of India, (d) And considering the fact emerging from the record of the said Company Application No. 203 of 2001 that at any stage of the said proceedings, the respondent State Bank had never raised any objection or dispute with regard to the details of the claim of the workmen and/or with regard to the report of the chartered accountant and the "disputed claim" of which reference made in the order dated October 3, 2007, was in view of the dispute/objection recorded by the chartered accountant in respect of the workers' claim to the extent of Rs. 5,46,55,820 (comprising Rs. 2,50,20,379 towards privilege leave, Rs. 2,58,73,673 towards bonus and Rs. 37,61,768 towards notice pay) in the report dated September 29, 2005 and in respect of the workers' claim to the extent of Rs. 5,47,50,284 (comprising Rs. 2,51,14,843 privilege leave, Rs. 2,58,73,673 towards bonus and Rs. 37,61,768 towards notice pay) mentioned by the official liquidator in the report dated January 23, 2006. The said reference of "disputed claim" as mentioned in the order dat....
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....nd clarified that it would be open to the said respondent State Bank of India to accept the amount or not to accept the amount or to accept it with objection. If the respondent State Bank of India does not come forward to accept the amount in pursuance of this order, it would be open to the official liquidator to retain the said amount separately for the purpose of disbursement and such amount shall remain earmarked for the purpose of said secured creditor. 53. I also consider it appropriate to allow the official liquidator to retain about Rs. 1.50 crores for contingency and other expenses for disbursement which may become necessary in future. 54. This would leave behind a sum of about Rs. 12 crores available for ad hoc disbursement. 55. For this purpose, I also consider it appropriate to take into account the lowest figure amongst the three figures available on record so far as workers' claim is concerned, i.e., Rs. 34.85 crores as against the figure of Rs. 44 crores or even Rs. 37.59 crores as mentioned in other reports. 56. This, however, would be without prejudice to the contentions and objections as well as right of the workers to claim that higher amount is admiss....