1. M/s.Manipal Finance Corporation Limited (the applicant herein) has taken out Judges Summons with the following prayers:
"(A) Your Lordships may be pleased to allow this application and direct Official Liquidator of M/s.Gujarat Indolbues Limited, respondent No.1 herein to pay and disburse in favour of applicant further amount of net sale proceeds released from sale of factory land bearing Survey No.26/1-2 to 26/1-5 admeasuring 23129 sq.mtrs. of Village Khandiwada, Taluka Waghodia, District Baroda, and machineries installed therein which were mortgaged and hypothecated respectively in favour of the applicant.
(B) Your Lordships may be pleased to pass such other and further order/s as may be deemed fit and proper in the interest of justice."
2. In the affidavit in support of the Judges Summons, it is stated by the applicant that it is a Secured Creditor of M/s.Gujarat Indolubes Limited (Company in Liquidation). Earlier, the applicant Company had taken out Judges Summons, being Company Application No.590 of 2008, inter-alia, seeking a prayer to disburse the amount of net sale proceeds, or such amount as deemed fit and proper, realised from the sale of properties of the Company in Liquidation. This Court, vide order dated 16.03.2009, issued directions to the Official Liquidator of the Company in Liquidation, to invite claims from all Secured Creditors and Workers, by issuing an advertisement and to appoint a Chartered Accountant for the purpose of verification of such claims that may be received pursuant to the said advertisements. A copy of the order dated 16.03.2009 passed in Company Application No.590 of 2008 has been annexed along with the affidavit. Pursuant to the advertisement, the applicant lodged a claim of Rs.2,30,32,757/- and respondent No.2 M/s.Wipro Finance Limited lodged a claim of Rs.20,16,309/-. The claims were verified by the Chartered Accountant appointed by the Official Liquidator, who approved the claim of the present applicant. The Official Liquidator filed O.L.R. No.31 of 2011, praying for permission to make disbursement to the applicant from the available funds to the tune of Rs.72,66,384/- after reserving an amount of Rs.10,00,000/- in the Company's account for any other claim and for winding up expenses. By order dated 28.06.2011, this Court disposed of O.L.R. No.31 of 2011, permitting the Official Liquidator to disburse a sum of Rs.47,50,000/- in favour of M/s.Manipal Finance Corporation Limited (the applicant). It was further directed that the rest of the amount may be retained and appropriately invested by the Official Liquidator, subject to further orders. By the said order, it was kept open to the applicant to prefer an appropriate application for further disbursement after a reasonable period of time i.e. when the Official Liquidator would be in position to confirm as to whether any further claims are received, or not. The order dated 28.06.2011 passed in O.L.R. No.31 of 2011 has also been annexed to the present application. Pursuant thereto, an amount of Rs.47,50,000/- has already been disbursed in favour of the applicant by the Official Liquidator. According to the applicant, as sufficient time has elapsed after passing of the order dated 28.06.2011, and to the knowledge of the applicant, no other claim has been received, the applicant has taken out the present Judges Summons.
3. The Official Liquidator has filed three reports. In the first report dated 09.03.2012, the Official Liquidator had sought relief that respondent No.2 M/s.Wipro Finance Limited may be heard on the aspect of the maintainability of their claims and that the Official Liquidator may be permitted to join the Income Tax Department, as party respondent. By order dated 20.03.2012, the Joint Commissioner of Income Tax was joined as party respondent No.3 and has filed an affidavit-in-reply affirmed on 01.05.2012, wherein it is stated that the approximate tax liability towards capital gains tax/income from other sources is estimated at Rs.4,00,000/-.
4. In the second report dated 08.06.2012 filed by the Official Liquidator, the Official Liquidator has submitted that the Court may pass an order of disbursement after the submission of the report of the Chartered Accountant, as the Income Tax Department has submitted and estimated calculation of tax in their affidavit without considering the deduction/exemption, if any, in the matter.
5. The report of the Chartered Accountant dated 30.07.2010 is placed on record as Annexure-D. Only the claim of M/s.Manipal Finance Corporation Limited (the applicant) has been admitted. The claims of the workers are stated to be Nil and the claim of M/s.Manipal Finance Corporation Limited (the applicant) is stated to be admissible i.e. an amount of Rs.2,30,32,757/-. Respondent No.2 M/s.Wipro Finance Limited did not submit any documents in support of their claims, as stated by the Official Liquidator in the first report dated 09.03.2012, therefore, they are not considered as a Secured Creditor.
6. In the third report made by the Official Liquidator dated 12.06.2012, it is stated that permission may be granted to set aside a sum of Rs.8,00,000/- to meet the expenses of income tax liability and miscellaneous winding up expenses that may arise in the future; and thereafter, the Official Liquidator may be permitted to disburse an amount of Rs.20,00,000/- in favour of M/s.Manipal Finance Corporation Limited (the applicant) as "full and final disbursement".
7. Heard Mr.Sunit Shah, learned advocate with Mr.N.V. Gandhi, learned counsel for the applicant, Mr.Hiren Modi, learned advocate for the Official Liquidator and Mr.Manish R. Bhatt, learned Senior Advocate with Mrs.Mauna M. Bhatt, learned advocate for respondent No.3
8. Mr.Sunit Shah, learned advocate for the applicant, submits that the applicant has no objection, if an amount of Rs.8,00,000/- is directed to be set apart in order to meet the Income Tax liability and miscellaneous and winding up expenses. However, he has raised an objection to the use of the words "full and final disbursement", pertaining to the amount of Rs.20,00,000/-, as stated by the Official Liquidator.
9. Mr.Hiren Modi, learned advocate for the Official Liquidator, states that in case, the Court is of the view that an amount of Rs.20,00,000/- can be disbursed in favour of the applicant, the Court may not consider the words "full and final disbursement", as has been mentioned by the Official Liquidator in Paragraph-2 of the report dated 12.06.2012.
10. Mr.Manish R. Bhatt, learned Senior Advocate with Mrs.Mauna M. Bhatt, learned advocate for respondent No.3, submits that respondent No.3 has no objection, if an amount of Rs.20,00,000/- is disbursed to the applicant after keeping aside the amount of Rs.4,00,000/- towards capital gains tax/income from other sources.
11. Upon considering the material on record and the submissions advanced by the learned counsel for the respective parties, it appears that the total remaining amount, which is available with the Official Liquidator, as on 01.02.2012, is Rs.28,65,057/-. This is also stated by the learned advocate for the Official Liquidator. As it is stated that there is no claim pending and as an amount of Rs.8,00,000/- is required to meet with the income tax liability, miscellaneous and winding up expenses, there is, and cannot be, any objection to the disbursement of an amount of Rs.20,00,000/- in favour of the applicant.
12. Accordingly, the following directions:
The Official Liquidator is directed to set aside an amount of Rs.8,00,000/- to meet the expenses of income tax liability, miscellaneous and winding up expenses that may be arise in the future, out of the sum of Rs.28,65,057/- that is available, as on 01.02.2012. An amount of Rs.20,00,000/- may be disbursed in favour of M/s.Manipal Finance Corporation Limited (the applicant herein) towards their claims, subject to the usual undertaking to be filed by the applicant. After disbursement of the amount of Rs.20,00,000/- in favour of the applicant, the remaining amount be kept in a Fixed Deposit until such time that it is disbursed.
The application is disposed of.
(Smt.
Abhilasha Kumari, J.) rakesh/ Top