The present appeal is filed by IDBI Bank Limited being aggrieved by order passed by the learned Company Judge in Company Application No.462 of 2008 in Official Liquidator's Report No.245 of 2007 dated 17th August 2009. The learned advocate for the appellant submitted that the learned Company Judge has recorded in para 6 as under: “It is true that as per the decision of this Court for working out the ratio, this Court in the order dated 26.7.2007 passed in Company Application No.657 of 2006 in the case of I.D.B.I. v. O.L. of Rustom Mills and Industries Limited read with the decision of this Court dated 7.5.2008 in OLR No.138 of 2006, for the working out of ratio, the amount claimed by the secured creditor having second charge is also required to be taken into consideration. However, that does not mean that even prior to the proof of the security by way of first charge by decree of the competent Court having priority over the security of the secured creditor having second charge, all the amount be disbursed to the secured creditor having first charge. .. .. “
2. The learned advocate for the appellant has objection only so far as the aforesaid observation is concerned. The learned advocate for the appellant then invited attention of the Court to the observations made by the learned Company Judge in para 7, the relevant part of which reads as under:
“It is not the say of the applicant that there is a decree for such purpose, nor such decree is produced before this Court. Therefore, the amount which may go to the share of Vijay Bank cannot be disbursed to the applicant and the said amount will have to retained by the OL until the final adjudication between the two secured creditors namely; the secured creditor having first charge and the secured creditor having second charge.” (emphasis supplied)
3. The learned advocate for the appellant also invited attention of the Court to para 9 of the judgement which reads as under:
“The remaining being Vijaya Bank's share as well as workers' share shall be set apart by the OL and shall be invested in FDRs in a nationalized Bank.”
4. The learned advocate for the appellant invited attention of the Court to the document produced along with the Official Liquidator's Further Report, which is produced at page 86 of the Company Application. The Official Liquidator's Further Report, in para 2 itself, mentions in a tabular form which is reproduced for ready perusal:
“2. The ratio amongst the secured creditors shall be:
5. Besides, the Official Liquidator has produced report of verification of the claims of secured creditors by Chartered Accountant-Messrs Vibhakar J. Trivedi & Co., wherein the Chartered Accountant has recorded on the basis of the record of the Registrar of Company, wherein it is stated in clause (b) Summary of Important Observations as under:
3. The Secured Creditors as per the 'D' File of ROC, Ahmedabad, whose amount is still outstanding are:
a. Vijaya Bank
b. IDBI Bank.
4. During inspection of the 'D' file of Arm Polymers Ltd (in liqn) it was also observed that Vijaya Bank (Kamdhenu Complex, Ambawadi, Ahmedabad) is also a Secondary Charge Holder and hence we requested the Official Liquidator to ask Vijaya Bank to file its claim in the prescribed format.”
5. xxx xxx
6. xxx xxx
7. The claim submitted by IDBI Bank for Rs.12,18,59,077/- (Twelve crores eighteen lacs fifty nine thousand seventy seven only) as outstanding dues as on 11.03.2005 (date of liquidation) has been verified by us and we have not found any discrepancy during the course of our verification.”
6. In view of that there is no dispute and in fact there cannot be any dispute when the contention raised by the learned advocate for the appellant is supported and borne out from the record of the R.O.C., Ahmedabad. In view of the above, judgement and order of the learned Company Judge to the extent it is against the appellant is quashed and set aside. Rest of the order is retained. The net effect of it will be that the Official Liquidator will have to pay to the IDBI Bank as 1st Charge Holder on usual terms and conditions. Rest of the directions issued by the learned Company Judge to be carried out the Official Liquidator. The appeal is allowed to the aforesaid extent.
(RAVI R. TRIPATHI, J.) karim (N.V. ANJARIA, J.)