Delhi High Court
Haryana Financial Corporation vs Sneh Contracts Pvt. Ltd & Ors. on 17 August, 2012
Author: Rajiv Sahai Endlaw
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 17th August, 2012
+ CO.APP.45/2012
% HARYANA FINANCIAL CORPORATION ....Appellant
Through: Mr. G.S. Raikhy, Advocate.
Versus
SNEH CONTRACTS PVT. LTD & ORS. ..... Respondents
Through: Mr. Rajiv Bahl, Adv. for O.L.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
JUDGMENT
RAJIV SAHAI ENDLAW, J.
1. The appeal impugns the order dated 15th March, 2012 of the learned
Company Judge in Company Application No. 906/2008 in Company
Petition No.159/1994 pertaining to winding up of M/s Tara Cements Pvt.
Ltd.
2. The said M/s Tara Cements Pvt. Ltd. since ordered to be wound up
and hereinafter called the company in liquidation had availed finance from
the appellant on the security of its immovable and movable properties.
Upon the failure of the company in liquidation to make payments, the
appellant in exercise of powers under Section 29 of the State Financial
Corporations Act, 1951 repossessed the immovable property of the
company in liquidation at Village Tajpur, Tehsil Narnaul, District
Mahendragarh and put the same to auction. The bid of one Shri Mukesh
Kumar Sanghi at Rs.18 lacs was accepted on 26th November, 2001 and an
Agreement to Sell dated 23rd January, 2002 was executed by the appellant
in favour of the said auction purchaser. Out of the total bid amount of
Rs.18 lacs, Rs. 4.50 lacs stood paid to the appellant till then and the
balance was payable in 12 instalments alongwith interest on the total
outstanding amount.
3. The learned Company Judge thereafter vide order dated 28 th
February, 2003 in the winding up proceedings appointed a Provisional
Liquidator. The said Provisional Liquidator sealed the aforesaid property
on 16th April, 2003. The appellant as well as the auction purchaser filed
applications for de-sealing of the property.
4. The learned Company Judge vide order dated 13 th August, 2004
approved the sale in favour of the auction purchaser but directed the
balance sale consideration then payable by the auction purchaser to be
deposited with the Official Liquidator.
5. The auction purchaser, after deposit of the entire balance
consideration with the Official Liquidator, filed Company Application No.
906/2008 supra for a direction for execution of the sale deed in its favour.
6. The learned Single Judge vide impugned order has directed the
appellant to execute the sale deed and deliver title documents of the
property in favour of the auction purchaser with liberty to the appellant to
file its claim with the Official Liquidator for the amount claimed to be due
to it.
7. The appellant challenges the aforesaid order contending that it
cannot be directed to execute the sale deed without release of the balance
sale consideration deposited with the Official Liquidator in its favour. It
is pleaded that the appellant is a secured creditor and a first charge holder
and is entitled to the entire sale consideration.
8. Notice of the appeal was issued to the Official Liquidator as well as
to the State Bank of Travancore which was also reported to have a claim
over the subject property. None appeared on behalf of the said Bank
inspite of service on 30th July, 2012 or on any date thereafter. None has
appeared for the Bank today also. The counsel for the Official Liquidator
has filed a Status Report disclosing the claim against the company in
liquidation of the Bank only. The counsel for the appellant has shown
documents to demonstrate that the charge of the Bank on the subject
property is subservient to the charge of the appellant. We have no reason
to doubt the said statement particularly when the Bank has chosen not to
appear.
9. There being no preferential creditors of the company in liquidation,
the appellant is found entitled to the release of the balance sale
consideration of the subject property lying deposited in this Court/with the
Official Liquidator together with interest accrued thereon. The Official
Liquidator is accordingly directed to within one week hereof release the
aforesaid amount in favour of the appellant.
10. We may record that though the counsel for the Official Liquidator
has stated that the expenses if any incurred be allowed to be deducted
from the aforesaid amount but has been unable to give any particulars of
the said expenses. The auction having been conducted by the appellant
itself, the question of the Official Liquidator incurring any expenses on
that behalf does not arise.
11. The appeal is thus disposed of in aforesaid terms. We had earlier
vide order dated 3rd August, 2012 already directed the appellant to execute
the sale deed in favour of the auction purchaser.
No order as to costs.
RAJIV SAHAI ENDLAW, J
ACTING CHIEF JUSTICE
AUGUST 17, 2012
M
