Nilkamal Ltd v. Rupee Co-operative Bank Ltd & Anr.

Sri Uday Warunjikar with Sri Kiran Kulkarni for the appellant. Sri S. Ramakanta, Dy. Official Liquidator, present. CORAM: SRI SRI R.M.S. KHANDEPARKAR P.B. MAJMUDAR, JJ. & DATE: JUNE 30, 2008. P.C. Heard. The appellant challenges the order dated 21st June, 2007, passed in Company Application No. 39 of 2007. By the impugned order, the following directions were issued.

9. In these circumstances, there shall be a direction in the Company Application in the following terms: The Official Liquidator is directed to disburse an (i) amount of Rs. 3,69,17,030/- to the Applicant at the present stage together with further amounts of Rs. 21,099/- (insurance charges); Rs. 5,64,752/- (security expenses) and Rs. 2,75,000/- (sale expenses) within a period of two weeks from today. (ii) The disbursal of the amounts in pursuance of the -2- direction in clause (i) above shall be subject to the Applicant filing an undertaking before the Liquidator in terms of the 5th proviso to sub-section (9) of Section 13 of the Securitization Act that if any further amount is due and payable by the Applicant on account of workmen's dues under Section 529- A of the Companies Act, 1956, the Applicant shall bring back the aforesaid amount if so directed by this Court, together with such rate of interest as may be awarded. The Applicant has agreed before the Court to (iii) furnish to the Official Liquidator a statement in support of the computation of its claim both in respect of the principal, interest and other dues as per the books of accounts of the secured creditor. In the event that upon a scrutiny thereof the Official Liquidator finds that any directions are necessary by this Court, the Official Liquidator will be at liberty to move a further report.

At the outset, learned advocate for the appellant submitted that there was delay in grant of certified copy of the impugned order. By that time already the impugned order was executed by the Official Liquidator and the amount was withdrawn and disbursed in terms of the directions.

Considering the information given across the Bar regarding the execution of the impugned order, in our considered opinion, the present appeal is rendered infructuous on that ground itself. Even otherwise, the laches on the part of the appellant disentitles it to have any interference in the impugned order. The contention that merely because there was delay in giving certified copy, the appeal is rendered infructuous is not at all correct. The certified copy of the impugned order was applied for on 2nd July, 2007 -3- and it was ready for delivery on 15th October, 2007. It was collected on 23rd October, 2007. However, though the appeal was lodged on 20th October, 2007, the office objections were not removed till 4th February, 2008. This itself disclose that it is not merely on account of delay in furnishing the certified copy that the Liquidator got sufficient time to execute the directions in terms of the impugned order. The contention that merely because there was some delay in furnishing the certified copy, the appellant has been put to prejudice cannot be accepted. Very fact that the appellant did not find it appropriate to remove the office objections till the beginning of February, 2008, itself shows lethargy and negligence on the part of the appellant in pursuing with the matter.

As already observed above, since the directions in the impugned order have already been complied with, the appeal, in our opinion, is rendered infructuous and is accordingly dismissed. R.M.S. KHANDEPARKAR, J. P.B. MAJMUDAR, J.