Lord Krishna Bank Ltd. vs Koshika Telecom Ltd.
2012 Latest Caselaw 303 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI
%                        CO.APP. NO. 1575/2009
                                       IN
                            CO.PET.NO. 75/2002
+                                Date of Decision: 16th January, 2012
       In the matter of :

#      LORD KRISHNA BANK LTD.                              .....Petitioner

                                       Versus

$      KOSHIKA TELECOM LTD.                               ....Respondent

                                  AND

       In the matter of:

       APPLICATION u/s 469, 470, 476, 529 & 529-A
       OF THE COMPANIES ACT, 1956 FILED BY
       M/S. ZULLU SECURITY (INDIA) PVT. LTD. ...Applicant

       Appearance: Mr. Tarun Kashyap, Advocate for the applicant
                   Mr. Maninder Singh Sr. Advocate with Mr.
                   P.S.Bindra, Advocate for IFCI
                   Mr. Rajiv Bahl, Advocate for O.L.

       CORAM:
*      HON'BLE MR. JUSTICE P.K.BHASIN

                                      ORDER

P.K BHASIN,J:

This application has been filed by M/s Zullu Security (India)

Pvt. Ltd. (hereinafter to be referred as 'the applicant Company') for

issuance of a direction to IFCI, a secured creditor of the Company

under liquidation, namely, M/s Koshika Telecom Ltd., for paying to it

Rs. 37,84,823/-.

2. The applicant Company is a security provider and is on the

panel of security providers maintained by the official liquidator

attached to this Court for providing security services to protect the

assets of those Companies in respect of which provisional liquidator is

appointed by this Court in winding up petitions and their assets are

taken over by the official liquidator. This Court in the present case

had passed an order for the appointment of a provisional liquidator in

respect of M/s.Koshika Telecom Ltd. Thereafter, the official

liquidator took over some assets of the said Company and in order

to protect the same IFCI, a secured creditor of this Company under

liquidation , took over the responsibility of the safety of those assets

as it was vitally interested in their protection to protect its own interest

as a secured creditor of the Company under liquidation. The applicant

Company was then entrusted the job of providing security services

and it is undisputed that IFCI had entered into a contract with the

applicant Company and had agreed to make the payment of the

security charges to the applicant Company directly and thereafter it

had been paying also the security charges to the applicant.

3. The applicant Company in this application has claimed that a

sum of Rs. 37,84,823/- is to be paid to it by the IFCI on account of

security charges upto August,2009.

4. IFCI filed a reply to this application and opposed the same on

the grounds that payment of security charges to the applicant

Company was stopped as it had started raising inflated bills and also

that the applicant being in the position of an unsecured creditor should

lodge its claim with the official liquidator. It was also pleaded that

even otherwise this application is liable to be rejected since after the

filing of the application a number of meetings were held between the

officials of IFCI, the official liquidator as well as the applicant

Company and finally it was decided that IFCI shall pay a sum of Rs.

14,38,442.00/- to the applicant Company as a full and final payment

of security charges for the period ending till July, 2010. Accordingly,

IFCI vide its letter dated 17-07-2010 sent a cheque to the applicant

Company for the aforesaid amount in full and final settlement of its

claim against IFCI. That cheque was encashed by the applicant

Company without any protest and having encashed the said cheque

without any demur or protest it was estopped from claiming any

further amount from IFCI.

5. In reply to the plea of IFCI regarding the unconditional

acceptance and encashment of the cheque for Rs.14,38,442/- by the

applicant Company claimed that there was never any settlement

between the parties for acceptance of less amount by the applicant.

6. Learned senior counsel for the IFCI, Shri Maninder Singh had

cited one judgment of Supreme Court in the case of "Bhagwati

Prasad Pawan Kumar v. Union of India", (2006) 5 SCC 311 in

support of his main submission that the applicant Company having

encashed the cheque for a lesser amount sent to it by IFCI during the

pendency of this application without any protest this application had

become infructuous and should be disposed of summarily without

going into any other aspect as the applicant Company is estopped

from proceeding further with its application for getting more amount.

7. However, in my view this application cannot be disposed of

summarily as having become infructuous, as was contended by the

learned senior counsel for IFCI. The judgment cited by the learned

senior counsel prima facie does not appear to be applicable to the facts

of the present case since in that case less amount was tendered to the

claimant by the debtor before the initiation of legal proceedings and

the claimant had accepted that payment from its debtor without protest

while in the present case the applicant had already moved this

application for recovery of its dues. In any event, I am of the view

that all the objections raised by the IFC need to be dealt with together

and not in piece meal.

So, this application shall be taken up on 2nd February, 2012 for

hearing on all the points taken by IFCI in its reply.

P.K. BHASIN, J

JANUARY 16, 2012