Delhi High Court
M/S Standard Glass International vs Macdonald Mohan Distillers Ltd on 23 October, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 23.10.2017
+ CO.PET. No. 213/1999
M/S STANDARD GLASS INTERNATIONAL ....Petitioner
Through: None
Versus
MACDONALD MOHAN DISTILLERS LTD ...Respondent
Through: Mr.D.Bhattacharya, Adv. for OL
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
CO.APPL. 1710/2017 & C.P.NO. 213/2017
1. The present application under section 481 of the Companies Act, 1956
has been filed on behalf of the Official Liquidator seeking dissolution of the
Respondent Company. It is submitted that the Official Liquidator attached to
this Hon'ble Court was appointed as Provisional Liquidator vide Order dated
17.02.2000; and then vide Order dated 27.05.2005 this Hon'ble Court finally
directed the winding up of the Company, whereupon the Official Liquidator
attached to this Hon'ble Court was appointed as its Liquidator. The citation
thereof was published in the newspapers namely Statesman (English edition)
on 11.04.2005 and Veer Arjun (Hindi edition) on 10.04.2005.
2. The Learned Counsel for Official Liquidator submits that in view of
the above Order, the Official Liquidator came in possession of the moveable
assets of the Company, being, Liquor. The company was not found to own
any immoveable assets. The registered office (at Barakhamba road, New
Delhi), and one godown (at Mohan Nagar, Ghaziabad) which were sealed by
the Official Liquidator initially, were later handed over to Mohan Meakin
Ltd. (OLR 16/ 2014).
3. The Learned Counsel submits that the moveable assets of the
Company, i.e. Liquor, were sold by auction, vide Order dated 14.07.2005,
for sum of Rs.14,58,043/-. However the auction purchaser neglected to pick-
up the assets purchased by him/ her, and subsequently the same were
destroyed (under Order dated 07.11.2013) in presence of the officials from
Excise department. [Refer OLR 166/ 2014]
4. The Learned Counsel states that, vide advertisement published on
06.10.2005, in newspapers "Hindustan Times" (English edition) and "Amar
Ujala" (Hindi edition), claims were invited (as per Order dated 25.8.2005) by
Official Liquidator from all types of creditors.
In response to the above, initially, 06 claims were received by the
Official Liquidator. The Petitioner, however, never submitted his claim,
despite notice/intimation. After scrutiny, the Official Liquidator admitted
five claims. Subsequently, vide Order dated 13.9.2007 in OLR No.246/07,
this Hon'ble Court was pleased to permit the Official Liquidator to disburse
the admitted amounts. Accordingly, the admitted amounts were disbursed by
way of Pay Order/Demand Drafts dated 11.12.2007 to the respective
claimants by the office of Official Liquidator.
The following table demonstrates the number of claims received,
quantum, admission of claims and the consequent settlement:-
S No Name of Claimant Amount Amount Nature of Amount
Claimed Admitted Claim Disbursed
(In Rs.) (In Rs.) (In Rs.)
1 Dy. Commissioner of 1,50,73,613 1,63,541 Preferential 1,63,541
Income Tax, Delhi
2 Subhash Verma 85,000 10,860 Ordinary & 10,860
Unsecured
3 Mukesh Pruthi 2,22,051 1,17,606 Worker 1,17,606
4 N.K. Mittal 3,23,106 1,29,766 Worker 1,29,766
5 Trade Tax, 180.31 lacs Rejected Trade Tax Rejected
Ghaziabad Arrears
6 Orient Express (P) 1,23,927 1,23,927 Ordinary & 1,23,927
Ltd. Unsecured
5. Learned Counsel for OL submits that post the aforesaid disbursal, the
Punjab National Bank informed the Official Liquidator that it was a secured
creditor of the Company (in Liqn.). The Company (in Liqn.) was alleged to
have availed various credit limits under a consortium of two banks i.e.
Punjab National Bank and M/s Hongkong & Shanghai Banking Corporation.
6. Upon receipt of the above information, the Official Liquidator, vide its
letter No. Co. Liqn.(599)-1/T.C.-V/567-568 dated 01.10.2008 called upon (i)
Punjab National Bank, Mohan Nagar, Ghaziabad, and, (ii) HSBC Bank,
K.G. Marg, New Delhi to file their claims in terms of claim notice published
in "Amar Ujala" & "Hindustan Times" on 06.10.2005. In response thereof,
reply was received only from Punjab National Bank, Mohan Nagar,
Ghaziabad vide letter dated 12.11.2008. It transpired thereof that Punjab
National Bank was a Secured Creditor, and accordingly, its claim was
examined and adjudicated. No reply was however received from HSBC
Bank.
7. In view of the above developments, on 27.11.2008, this Hon'ble
Court whilst hearing OLR No. 409/2008, was pleased to permit the Official
Liquidator to issue notice to the creditors to whom disbursements have
already been made. Subsequently, vide Order dated 10.12.2012, this Hon'ble
Court directed the Income Tax Department to refund the amount received by
it to the Official Liquidator. This Order though challenged by the Income
Tax Department, but all the appeals by the Department were dismissed, right
upto the Hon'ble Supreme Court (SLP(C) No.22515/2013 dismissed on
10.07.2017). Accordingly, the Income Tax Department had to eventually
refund the said amount.
8. The Learned Counsel submits that, consequently, the claims were
settled by the official Liquidator, as under (and in compliance of Orders
dated 22.12.2014 and 14.10.2015 of this Hon'ble Court):-
S.No Name of Amount Amount Nature of Remarks
Claimant Claimed Admitted Claim
(In Rs.) (In Rs.)
1 Punjab National 79,06,558.20 31,31,428.56 Secured Paid Rs
Bank 18,00,000/-
creditor
2 Dy. 1,50,73,613 1,50,73,613 Preferentia Admitted
Commissioner of
l but not paid
Income Tax,
Delhi
3 Subhash Verma 85,000 10,860 Ordinary Not paid
&
Unsecured
4 Mukesh Pruthi 2,22,051 1,17,606 Worker Paid Rs.
1,17,606
5 N.K. Mittal 3,23,106 1,29,766 Worker Paid Rs.
1,29,766
6 Trade Tax, 180.31 lacs Rejected Trade Tax
Ghaziabad Arrears Rejected
7 Orient Express 1,23,927.00 1,23,927.00 Ordinary Not paid
&
(P) Ltd.
Unsecured
9. The Learned Counsel states that after aforesaid disbursements, as on
date, a sum of Rs. 4,53,771.41/- only is lying in the company account. Also,
there are no further assets to be realized.
10. Hence, the present application under Section 481 of the Act is being
made for dissolving the Company (in Liqn.). He prays, at bar, that the
Official Liquidator had incurred costs (or likely to incur now) to the tune of
Rs. 40,000/- towards costs, being, audit fee, Government fee, Income tax
liability, service charge etc., which may be permitted to be deducted from
aforesaid balance, and thereafter to remit the remainder sum of
Rs.4,13,771.41/- to the Common Pool Fund, or to Reserve Bank of India
under section 555(7) of the Companies Act, 1956 as unclaimed dividend
fund assets.
11. In this regard, the Learned Counsel relies upon the judgement in
Meghal Homes (P) Ltd. Vs. Shree Niwas Girni K.K. Samiti & Ors., (2007)
7 SCC 753, whereby the Supreme Court, inter alia in paragraph 31 thereof,
has held as under:-
"......When the affairs of the Company had been completely
wound up of the court finds that the Official Liquidator cannot
proceed with the winding up of the Company for want of funds
or for any other reason, the Court can make an order dissolving
the Company from the date of that order. This puts an end to the
winding up process."
12. Heard the learned counsel. It is apparent that the Official Liquidator
took possession of the moveable assets of the Company, liquidated them and
consequently paid the respective claims. It transpires that the Company had
no immoveable assets of its own. However, after disbursing the respective
claims as aforesaid, and considering the cost of Rs.40,000/- which the
Official Liquidator has incurred, a surplus/ balance of Rs.4,13,771.41/- is
still available. When even the Secured Creditor has not been paid in full of
its admitted amount (refer to the table at para 8 above) by the Official
Liquidator, I do not see any proper reason to permit Official Liquidator remit
the said surplus/ balance to the Common pool or to the RBI account. Such a
remittance may be permissible when there are no claims to be paid off. But
in the present case it is apparent that claims are still unpaid, including those
of the secured creditor. Hence, the said balance Rs.4,13,771.41/- must rightly
be disbursed to the claimants, as per Section 529/529A of the Act. The
unpaid secured creditor being on top of the hierarchy (refer Section 529/
529A of the Act), the available balance of Rs.4,13,771.41/- must go to it, i.e.
Punjab National Bank, Mohan Nagar, Ghaziabad. This disbursal will take
the total remittance to the Secured Creditor to Rs.22,13,771.41/-, which is
still below the amount admitted by the Official Liquidator.
13. In view of the above discussion, the Official Liquidator is directed to:-
i. Deduct the sum of Rs.40,000/- from the aforesaid surplus/ balance of
Rs.4,53,771.41/-, towards the costs incurred (to be incurred) by it, being
audit fee, Government fee, Income tax liability, service charge etc.;
ii. To disburse the remainder amount of Rs.4,13,771.41/- (i.e.
Rs.4,53,771.41/- minus Rs.40,000/-) to Punjab National Bank, Mohan
Nagar, Ghaziabad.
14. Consequent to the above disbursal, no further money is available to be
disbursed/paid, nor is any recovery to be effected. There would, thus, be no
useful purpose to continue with the present proceedings. Hence, subject to
the directions made at para 21 above, the Respondent Company is ordered to
be dissolved in terms of section 481 of the Companies act, 1956, and the
Official Liquidator is discharged as liquidator of the company. Further, the
official Liquidator is exempted from conducting audit of half-yearly
accounts or filing the annual accounts of the Respondent Company. The
Official Liquidator is also permitted to close the accounts and books of
Respondent Company, being maintained by the Official Liquidator.
15. A copy of this order be served upon the Registrar of Companies,
within a period of four weeks from today. With these directions, the
application and company petition are disposed off.
JAYANT NATH, J.
OCTOBER 23, 2017/v
