BANK OF INDIA Vs. JASHWANTBHAI GIRDHARLAL

JUDGEMENT

(1.) Heard learned Advocate Mr. D.M.Parikh for applicant learned Advocate Mr. P.C. Master for opponent No. 1 and 2 and learned AGP Mr. L.B. Dabhi for; opponents No. 3 and 4 and Mr. M.S. Rao for opponent No.5.

(2.) Learned Advocate Mr. D.M. Parikh who is appearing for the applicant Bank of India being third party has submitted that the present applicant is secured creditor and the proceedings in respect of its dues are pending before the DRT at Bombay. He also submits that applicant has obtained interim orders from the DRT against the transfer/sale of the property of opponent No.5. He also submitted that such stay is in operation but the company is not wound up by the Bombay High Court but winding up proceedings are pending before the Bombay High Court. He also submits that winding up proceeding is not filed by the applicant Bank of India. He also submits that if this property is sold, then, it will create lot of complication, multiplicity of proceedings. He also submits that the valuable right of the applicant will be adversely affected if the dues of the workers towards gratuity are secured by opponents No. 1 and 2. He also submits that considering the facts, claim of workers cannot adversely affect valuable right of the Bank of India as a secured creditor. He submits that it is likely to result into complications. He also submits that section 529/529A of the Companies Act would not come into play because winding up orders have not been passed uptil now by the Bombay High Court but it will come into effect only after winding up orders are passed by the High Court of Bombay. Therefore, it is his contention that the workers are not entitled to have right of pari passu on priority so long as the winding up orders have not been passed by the High Court of Bombay. He also submits that in the facts of this case, right of secured creditor cannot be adversely affected and these facts have not been brought to the notice of this court when this court passed order on 5.5.2006 in SCA No. 9985 of 2006. He referred to the relief prayed in Miscellaneous Civil Application and prayed to consider the relief prayed for in review application and to grant the permission so interest of the parties can be protected. Review application has been filed by the applicant Bank of India against the order of this court dated 5.5.2006. He relied upon section 13(10) of the Securitisation Act. He also relied upon the provisions of Order 47 Rule 1 of the Code of Civil Procedure. He relied upon two decisions one reported in AIR 1999 GUJARAT 193 IN CASE OF ORIENTAL TEXTILE MILLS LTD. V. BHARAT K. PATEL AND OTHERS REPORTED IN AIR 1999 GUJARAT 193 AND THE ANOTHER IS AIR 2005 SC 1814 IN CASE OF ANDHRA BANK V/S. OFFICIAL LIQUIDATOR AND ANOTHER. He also submits that Order 47 Rule l(a) of the Code of Civil Procedure, gives right to any person to file such review application before this Court. Therefore, he requested this Court to grant permission and to entertain prayer made in review application filed by the applicant bank. Except these submissions, no other submission was made by the learned Advocate Mr.Parikh on behalf of the bank and except the two decisions referred to herein above, no other decision was referred to by the learned Advocate Mr. Parikh before this court.

(3.) Learned AGP Mr. Dabhi appearing for the authority has submitted that the statutory authority has acted as per recovery certificate issued by the controlling authority and direction issued by this court. Learned Advocate Mr. Master appearing for the workman submits that the order of the controlling authority is based on the consent and no payment is made by the company to the workers, therefore, request was made to the controlling authority to issue recovery certificate which has been issued and not implemented by the statutory authority, therefore, before filing petition, legal notice was served to the company and statutory authority but no response was shown by either of the authorities and Company and therefore ultimately special civil application No. 9985 of 2006 was filed by the petitioner - union i.e. Present opponents No.1 and 2 before this court and this court has rightly passed order dated 5.5.2006 directing the authority to enforce recovery certificate against the company. He also submits that the proceedings of the concerned bank are pending and the right to receive gratuity amount is protected under the provisions of the Payment of Gratuity Act,1972. According to his submission, amount of gratuity cannot be attached by any decree or order of any authority/court under section 13 of the Act and under section 14 of the Act, any agreement or any law which is adversely affecting right to receive gratuity is not operating against right to receive amount of gratuity of workers. Therefore, he submitted that no permission can be given to the applicant which would otherwise adversely affect right of the workers to receive gratuity which has been due since 2002. Therefore, it is his submission that the application filed by the bank may be rejected.