TaxTMI 
TaxTMI 
2016 (7) TMI 643
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of the outstanding dues of Torrent Power Ltd. And the GERC Notification dated 20.08.2010 and that Torrent Power Ltd. Would not provide electric connection at the same premises unless and until the said outstanding dues, together with interest thereon at the rate of 15 % per annum as on date of payment, are fully paid to Torrent Power Ltd.; (b) to direct the opponent herein to incorporate in all the advertisements for sale of assets of any Company in liquidation that may be issued by the opponent herein, the specific term and condition that if there are any outstanding dues of Torrent Power Ltd. From the concerned Company then Torrent Power Ltd. Would not provide electric connection at the same premises unless and until such outstanding dues, together with interest thereon at the rate of 15% per annum as on date of payment, are fully paid to Torrent Power Ltd. (c) to issue ad-interim directions in terms of paragraph 6(a) and 6(b) above, pending the hearing and final disposal of this application (d)***." 3. Whereas Company Application No.146 of 2015 is filed by the applicant viz. Paschim Gujarat Vij Company Ltd., wherein it has prayed as under:- "A. Your Lordships be please....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ny other services held in his name anywhere within the jurisdiction of the applicant - electricity Company. It was further submitted that thus, as per amended clause 4.1.11 of G.E.R.C., everything is covered right from new connection to even change of name. 7. It was further contended that the Official Liquidator gave further advertisement in "Times of India" dated 03.11.2010 for sale of the immovable properties of the Company (in liquidation), however, the Official Liquidator did not provide for notice to intending buyer as regards the dues of the applicant Company. 8. Learned counsel for the applicant further submitted that vide further communication dated 04.12.2010, the applicant requested the Official Liquidator to inform the intending purchaser/auction purchaser about the dues of two service connections bearing Service No.HT-39 and Service No.HT-266 and also further informed that the applicant Company will not provide electricity in the same premises unless and until the outstanding dues, together with interest thereon at the rate of 15 % per annum as on date of payment, is not fully paid up to the applicant and as no steps were taken thereafter, present application is file....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ounsel for the Official Liquidator have opposed the applications. Ms.Amee Yajnik, learned counsel for the Official Liquidator submitted that though the prayers appeared to be innocuous in reality they are not. It was contended that under which provisions of the Companies Act, 1956 (hereinafter referred to as "the Act" for short) the applicants are seeking direction against the Official Liquidator and that the applicants have no locus. It was further submitted that the applicants at the most may be preferential creditors and the advertisement, which is published, is given as per the terms and conditions fixed by this Court and therefore, no preferential treatment can be given to the applicants. It was thus contended that the applicants have no locus. 15. Mr.J.S.Yadav, learned counsel for the Official Liquidator has submitted that the present applications are unique applications made for the first time by the creditors and it is not filed as provided under the Act or the Companies (Court) Rules, 1959 (hereinafter referred to as "the Rules" for short) . It was further contended that the prayers prayed for in both applications are completely contrary to the provisions of the Act and t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the cases of Commissioner of Income tax Vs. KTC Tyres (India) Ltd. & Ors. {[2014] 185 Company Case 17 (SC)}, Employees' Provident Fund Commissioner Vs. Official Liquidator of Esskay Pharmaceuticals Ltd. {AIR 2012 SC 11}, and Governor General in Council Vs. Shiromani Sugar Mills Limited (in liquidation), [AIR (33) 1946 Federal Court 16], it was submitted that thus, the applications are misconceived and the same deserve to be dismissed. No other or further submissions are made by learned counsel for the respective parties. 19. Upon considering the submissions made by learned counsel for the parties and on perusal of the record of these applications, the applicants - Electricity Companies, who supplied the electricity to their respective customers namely "Ahmedabad Manufacturing and Calico Printing Mills Company Ltd.", and "Gujarat Hi-tech Industries Ltd." the Companies, are wound up. It is not the case of either of the applicants that they are secured creditors and field of disposal of the property of the Company (in liquidation) are governed by specific provisions of the Act and the Rules. Section 457(2A) of the Act provides as under:- (a) The Official Liquidator shall appo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....as under:- "Condition No.14: The purchaser shall be liable to pay all statutory dues, if any, due and payable on the properties of the subject company for the period after the date of winding up order. The payment of such dues for pre-liquidation period shall be settled as per the provisions of the Companies Act, 1956. However, dues taxes, cess, if any, applicable on the sale of the assets shall be paid by the purchaser. Condition No.23 : The Hon'ble High Court has right to impose such other and further terms and conditions as the Hon'ble High Court may deem, fir and proper, as in the circumstances of the case, may arise and said terms and conditions already specified above will be binding on all the parties concerned." 21. Though at first blush, the prayers prayed for by the applicants appear to be innocuous, the question which arise is that whether such condition is necessary to be provided or not. Upon considering the terms and conditions, which are provided by the Official Liquidator while disposal of the assets of the Company (in liquidation), appropriate conditions are already provided for. 22. For recovery of dues, the applicants have to lodge their claims. It ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ty and obligation of which was borne within the time frame of those 12 months and as such due and becoming due and payable within those 12 months next before the relevant date, ascertainable it necessary later, if not already ascertained. The words having become due and payable within 12 months next before the relevant date need to be understood to mean putting a restriction or cordoning of the amount for which priority is claimable and not in respect of each and every debt on account of taxes, rates and cesses etc. which may be outstanding at that time and payable. Thus, as and when the claim is lodged by the Sales Tax Department before the Official Liquidator, he has to first ascertain as to whether the liability of sales tax belongs to and is founded within the period of 12 months next before the date of order of winding up i.e. in the present case 22.12.1992. At this stage, it is relevant to note that the Sales Tax Department has already lodged the claim before the Official Liquidator in the year 1995. The Official Liquidator would consider the same in accordance with the provisions of Section 530 of the Companies Act. 19. Thus, merely because this Court has observed in condi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....here is basis" and "whatever there is" basis and in the light of the regulations quoted above, particularly, sub-clause 10(b) of regulation 13, we hold that the request was not for the transfer from the previous owner to the purchaser, on the other hand, it was a request for a fresh connection for the Unit of respondent No.1 herein. We are in entire agreement with the decision arrived by learned Single Judge as affirmed by the Division Bench of the High Court." 26. In the instant case also, as observed hereinabove, the electricity Companies have already disconnected the earlier connections and therefore, it would not be case of reconnection, but a fresh connection. However, at the same time, it is not at all necessary to provide in the advertisement that some amount is due and payable towards electricity charges from erstwhile consumer. In fact, the applicants have already disconnected the electricity supply for non-payment of charges of erstwhile customer. The Apex Court in the case of M/s.Swastik Industries Vs. Maharashtra State Electricity Board, has held that the electricity Company has power to discontinue the supply of electricity and/or cut the supply if the consumer is ne....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sion Bench of this Court in case of State Bank of India Vs. Official Liquidator of Commercial Ahmedabad Mills Co & Ors. Over and above the properties which are prescribed under Sections 429, 429A and 530 of the Act, as held by the Apex Court in the case of Employees' Provident Fund Commissioner (supra), provident fund dues in respect of the employees' contribution shall be deemed to be first charge of the assets of the Company (in liquidation). The case of the applicants cannot be equated with such dues of provident fund. In absence of any provision, it cannot be said that the terms and conditions as prescribed by the Official Liquidator as approved by this Court in any way erroneous. Even assuming that the applicants have priority as prescribed under Section 530 of the Act, in opinion of this Court, such cannot be incorporated in any advertisement for sale of the assets of any Company (in liquidation) as prayed for by the applicants. 29. In opinion of this Court, on the contrary the applicants are required to lodge their claim before the Official Liquidator in accordance with the provisions of the Act and Rules. As far as applicability of Supply Code, more particularly cl....