CANARA BANK Vs. OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) RATNA Packaging Complex (P.) Ltd. is a private limited company registered under the Companies Act, 1956 (for short "the Act, 1956"), having its registered office at Rural Industrial Estate, kattukuppam, Pondicherry. It carried on business in the manufacture of packing materials like corrugated boxes, rolls-boards and heavy duty shipping containers, etc. The Canara Bank offered certain financial facilities as a secured creditor to the said company, which availed of the same on execution of necessary documents. Similarly, the Pondicherry Industrial Promotion development and Investment Corporation Ltd. advanced certain amounts to the company on the furnishing of certain security by the company and thus, it had also become a secured creditor. There were five directors in the company and they also stood as guarantors to the bank for repayment of the amount by the company. The company on its inability to pay its debts was wound up on a petition by a creditor in Company Petition No. 56 of 1984 by an order of this court dated November 25, 1985, and the property of the company came to be vested with the official liquidator attached to this court. Prior to the initiation of the winding up proceedings, the bank instituted a suit, Original suit No. 427 of 1984, on the file of the Principal Subordinate Judge, pondicherry, on August 1, 1984, for realisation of the debt due to them against the company and others. The bank has now come forward with the present application under section 446 of the Act of 1956 praying for grant of leave to continue the proceedings in Original Suit No. 427 of 1984, on the file of the principal Subordinate Judge, Pondicherry, impleading as respondents, the company now represented by the official liquidator besides the five directors and the Pondicherry Industrial Promotion Development and Investment Corporation ltd. represented by its managing director. The official liquidator has filed his report stating that he has no objection to grant of leave subject to the terms (a) to (e) enumerated thereon. Besides, the learned official liquidator on the premise of section 529 of the Act of 1956 making the law of insolvency applicable to liquidation proceedings, would raise a question of some importance, which, according to him makes it obligatory on the person coming forward with an application under section 446 to make an election as to whether such a person is standing within or outside the liquidation proceedings in view of the fact that legal consequences to flow widely vary depending upon the election so made. The two points that arise for consideration in such circumstances are as follows : (1) Whether it is obligatory for the applicant coming with an application under section 446 of the Act of 1956 to make an election for his standing inside or outside liquidation proceedings and (2) Whether it is legally permissible to incorporate terms as suggested by the official liquidator whilst granting leave " Point No. 1 : A consideration of the salient provisions adumbrated in sections 28, 47, 48 and 61 of the Provincial Insolvency Act, 1920 (for short, "the Act of 1920"), will be necessary for determination of the question involved on this point. Section 28 deals with the effect of an order of adjudication. Sub-section (2) of section 28 prescribes that on the making of an order of adjudication, the whole of the property of the insolvent shall vest in the court or in a receiver as hereinafter provided, and shall become divisible among the creditors, and thereafter, except as provided by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable under this Act shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt or commence any suit or other legal proceeding except with the leave of the court and on such terms as the court may impose. It is but necessary to note in this context the provisions of sub-section (6) of the same section which provides that nothing in the section shall affect the power of any secured creditor to realise or otherwise deal with his security, in the same manner as he would have been entitled to realise or deal with it if this section had not been passed. The sub-section does not entitle the secured creditor to ignore the insolvency proceedings altogether or to treat the court or receiver as non-existent. It only saves the power of the secured creditor to realise his security or to otherwise deal with it and authorises him to do so in the same manner as he would have done had the section not been passed. The power of a secured creditor is to realise his money by the sale of the mortgaged property. The manner in which that right can be exercised is to file a suit, obtain a decree, get it executed and get the property sold in execution of that decree. While proceeding against the property of the insolvent for the realisation of his mortgage debt, he must implead the court or the receiver, because the equity of redemption vests in the court or the receiver, in view of the order of adjudication and in their absence the security cannot be realised. Section 47 deals with various ways of satisfaction of debts by realisation of the security. The section gives him three options. The first one is that he can realise his security and if there is something left due to him, then to come and prove for the balance. The second option is that he has to give up his security and to come into liquidation ranking with other creditors and take his share in the distribution of the dividends. The third option is to value his security and to come into liquidation and prove for any dues, that according to him, remain outstanding in respect of his debt on the valuation of his security. Section 48 deals with payment of interest. The section deals with two types of cases, namely, (1) where there is no provision for payment of interest in the agreement between the parties and (2) where there is an agreement to pay interest. In both the cases, the section provides for payment of interest not exceeding six per cent. per annum only up to the date of adjudication. Section 61 dealing with priority of debts provides that where there is any surplus after payment of the debts, it shall be applied in payment of interest from the date on which the debtor is adjudged an insolvent at the rate of six per cent. per annum on all debts entered in the schedule. This means that the proceedings after the date of adjudication should be deemed to have affected all the creditors in the same way and there is no reason why a difference should be made between one set of creditors and another set of creditors. This provision applies to all debts entered in the schedule whether there was or was not a stipulation between the creditors and the debtors as regards some of the debts about payment of interest. Therefore, interest after the date of adjudication is payable not only on debts which carried interest but also on debts entered in the schedule and which carried no interest. It is to be noted here that under insolvency, the ordinary rule is that all interest ceases once there is an insolvency and no interest is ordinarily permissible to be granted after the presentation of a petition. It is only under sections 48 and 61 of the Act of 1920 read together that the insolvency court has the jurisdiction to grant interest under certain circumstances. as indicated above. From a conspectus of various provisions of the Act of 1920, referred to above, it is crystal clear that it is not obligatory for the applicant to specifically say in so many words that he is, standing inside or outside the liquidation at the time of making an application under section 446 of the Act of 1956, and it is open to him to prove the balance due to him after taking the net amount realised by him from the security by the institution of proceedings in a court of law and for the balance due he will be recovering as an ordinary creditor and he will be entitled to payment of interest only if there is any surplus available after effecting payment to all the credtitors and that too at six per cent. per annum, provided he joins the schedule of creditors in the insolvency proceedings for the proof of the balance of his debt before the insolvent is discharged. The synonym of the word balance used in section 47 (1) of the Provincial Insolvency Act, is of paramount importance which calls for determination, so as to avoid any confusion regarding the amount provable in liquidation proceedings before the official liquidator by a secured creditor, after realisation of the amount due to him by exhausting the security offered to him. The learned official liquidator would submit that when the company goes into liquidation, a secured creditor may realise his security and prove for any balance outstanding and in that case, the remaining assets of the company would alone be liable for such principal and interest as was due on the date of the order of winding up. This argument is repelled by learned counsel on the other side by stating that the interest due after the date of liquidation is not to be excluded from the balance which is allowed to be proved under section 47 (1), as section 48 has no application at all to secured creditors. In support of his submission, the learned official liquidator would place reliance upon the definition of "secured creditor" under section 2 (e) which is as follows : "'secured creditor'means a person holding a mortgage, charge or lien on the property of the debtor or any part thereof as a security for a debt due to him from the debtor " * He also placed reliance on the decisions in Ram Chand v. Bank of Upper India Ltd. , Delhi, 1922 ILR (Lah) 59 1922 AIR (Lah) 281 and H. Oppenheimer v. M. E. Moolla and Sons Ltd. , 1929 ILR (Rang) 514 1930 AIR (Rang)47. Learned counsel for the other side placed implicit reliance on the decision in Sharfuzzaman v. H. Hunter, 1930 AIR (Oudh) 20. The learned official liquidator, placing reliance on the definition of "secured creditor", extracted above, would submit with all force and vehemence that the moment the security gets exhausted, in realisation of the amount due to the secured creditor, by sale, and if there is any balance due, there is no meaning in stating that for such balance due, the status of the secured creditor would remain unaffected. The sordid fact in the context of such a situation is that he has to be construed as an ordinary unsecured creditor for the balance due to him, because his position can, by no stretch of imagination, be stated to be better than that of other unsecured creditors in the insolvency proceedings. This submission of his gets reinforced and strengthened by the ratio laid down in the two decisions relied upon by him, cited above. In Ram Chand v. Bank of upper India Ltd. , Delhi, 1922 ILR (Lah) 59 1922 AIR (Lah) 281, it was held as follows (at page 285 of AIR 1922 Lah) : "as far as possible the rules of bankruptcy are applicable to liquidation matters. When a company goes into liquidation, a secured creditor may realise his security and prove for any balance there may be outstanding. The remaining assets of the company would in that case only be liable for such principal and interest as was due on the date of the winding up order. A secured creditor in the case of a liquidation is on the same footing as in that of insolvency proceedings. The property hypothecated is thus liable for the whole claim, principal and interest up to the date of realisation, and it is only the liability of the remaining assets that could be affected by the winding up order. " * In H. Oppenheimer v. M. E. Moolla and Sons Ltd. , 1929 ilr (Rang) 514 1930 AIR (Rang) 47, the following was the view taken (p. 48) : "in the liquidation proceedings of an insolvent company a secured creditor, after having exhausted his security cannot in proving as regards the balance of his debt unsatisfied include interest after the date of the winding up order. . . So far as the unsecured portion of their debts is concerned the provisions of the Insolvency Act, generally, do not suggest any intention of putting secured creditors on a more favourable footing than unsecured. " * In Sharfuzzaman v. H. Hunter, 1930 AIR (Oudh) 20, the view taken was as follows : "a secured creditor who has advantages of security may remain outside the Act. He can realise upon his security. The extent to which he realises on his security will reduce the estate in insolvency. But he obtains at first no part in the dividend and is unaffected by the proceedings. Should, however, the amount of realisation be less than the amount due to him he is given the special privilege of proving for the balance. This balance is the difference between the decretal amount and the amount realised. When he has proved he will not obtain any more than his proportionate share in the estate. He will be put then on the footing of an unsecured creditor. " * Considering the contentions of either side and the decisions cited by learned counsel on both sides I am affixing my seal of approval to the submission of the learned official liquidator, getting solid support in the decisions, Ram Chand v. Bank of Upper India Ltd. , Delhi, 1922 ILR (Lah) 59 1922 AIR (Lah) 281 and H. Oppenheimer v. M. E. Moolla and Sons Ltd. , 1929 ilr (Rang) 514 1930 AIR (Rang) 47. The decision cited by the other side, viz. , sharfuzzaman v. H. Hunter, 1930 AIR (Oudh) 20, is of no help, for the simple reason that that decision had not taken into account the significant change in the position of an unsecured creditor, for the balance due to him, after the realisation of his amount exhausting the security by way of sale. To put it otherwise, that decision proceeded on the basis that the position of the secured creditor remains unaltered in any eventuality. The further elucidation therein was that the secured creditor had been given the special privilege of proving for the balance representing the difference between the decretal amount and the amount realised by the sale of the security. This position is rather inconceivable when especially the learned judge in that case proceeded on the footing that the secured creditor is on the same footing of an unsecured creditor respecting the balance due to him. As already submitted by the learned official liquidator, the position of a secured creditor cannot at all be stated to be in a better position than that of the other unsecured creditors, the moment the secured creditor comes before the insolvency proceedings for the proof of the balance due to him, after realisation of his security and in such a contingency the remaining assets of the company would be liable for principal and interest as was due on the date of the winding up order. If this position is not made clear, while granting leave to continue the proceedings initiated under section 446 (1) of the Act, a chaotic and confounding situation would be created when he appears before the official liquidator for the proof of the balance due to him. The official liquidator would be placed in a delicate position and it will be embarassing for him to decide whether to honour the decree of a civil court, in the sense of allowing the creditor to make a claim before him in respect of the entirety of the balance due to him, which is inclusive of interest up to the date of realisation, or to restrict the claim of the secured creditor only to principal and interest up to the date of the winding up order. In this view of the matter, the balance due to the secured creditor coming before the insolvency or liquidation proceedings, must be made specifically clear, beyond the pale of controversy. In these circumstances, I agree with the contention of the learned official liquidator and I answer the point accordingly. Point No. 2 : The incorporation of various terms, as suggested by the learned official liquidator in his report, in the order granting leave falls for consideration in this point. It is not as if the court is bereft of power to incorporate any terms while granting such leave and it is explicitly made clear by the phraseology, namely, "except by leave of the court and subject to such terms as the court may impose" * incorporated in sub-section (1) of section 446 of the act, 1956. The incorporation of such terms is perhaps contemplated to safeguard the interests of the general body of creditors, contributories and workmen affected by liquidation proceedings. The incorporation of the terms (a) to (e)as suggested by the official liquidator in his report can by no stretch of imagination be construed to be in any way affecting the interest of the applicant, in the sense of the same causing prejudice to his cause and that apart, the learned official liquidator acting as an officer of the court, had simply done his duty in requesting the court to incorporate all those terms in the interests of all persons affected by liquidation and, therefore, it is that all those terms deserve to be incorporated in the order granting leave. The point is answered accordingly. In the result, the petition is allowed granting leave to the applicant as prayed for, subject to the following conditions : (a) In the event of the applicant-bank obtaining a decree, it shall not execute it against the assets and effects of the company in liquidation not forming part of the suit property (b) In the event of the applicant-bank obtaining a decree and realising the security, the applicant-bank is precluded from proving before the learned official liquidator for any deficiency arising out of the sale of the security, except and to the extent provided in section 529 of the Act of 1956 (c) In view of the provisions contain in sections 520 and 529a of the act, 1956 in the event of the applicant-bank realising the security pursuant to the decree in the suit in O. S. No. 427 of 1984 on the file of the Principal subordinate Judge, Pondicherry, the applicant-bank can appropriate the sale proceeds of the said security subject to and without prejudice to the rights and claims of the workmen of the company in liquidation over the said sale proceeds (d) The grant of leave in this application to the applicant-bank will not be construed as grant of leave to the Pondicherry industrial Promotion Development and Investment Corporation Limited (seventh defendant) which has not moved this court for leave to continue the suit in O. S. No. 427 of 1984 (e) The grant of leave on terms as above to the applicant-bank does not amount to grant of leave to the Pondicherry Industrial promotion Development and Investment Corporation Limited (seventh defendant) to work out its rights, if any, as a purported secured creditor of the company in liquidation through a court of law (f) The applicant bank secured creditor can prove only for the deficiency of the balance amount representing the principal and interest calculated up to the date of the order of winding up. JANARTHANAM J. RATNA Packaging Complex (P.) Ltd. is a private limited company registered under the Companies Act, 1956 (for short "the Act, 1956"), having its registered office at Rural Industrial Estate, kattukuppam, Pondicherry. It carried on business in the manufacture of packing materials like corrugated boxes, rolls-boards and heavy duty shipping containers, etc. The Canara Bank offered certain financial facilities as a secured creditor to the said company, which availed of the same on execution of necessary documents. Similarly, the Pondicherry Industrial Promotion development and Investment Corporation Ltd. advanced certain amounts to the company on the furnishing of certain security by the company and thus, it had also become a secured creditor. There were five directors in the company and they also stood as guarantors to the bank for repayment of the amount by the company. The company on its inability to pay its debts was wound up on a petition by a creditor in Company Petition No. 56 of 1984 by an order of this court dated November 25, 1985, and the property of the company came to be vested with the official liquidator attached to this court. Prior to the initiation of the winding up proceedings, the bank instituted a suit, Original suit No. 427 of 1984, on the file of the Principal Subordinate Judge, pondicherry, on August 1, 1984, for realisation of the debt due to them against the company and others. The bank has now come forward with the present application under section 446 of the Act of 1956 praying for grant of leave to continue the proceedings in Original Suit No. 427 of 1984, on the file of the principal Subordinate Judge, Pondicherry, impleading as respondents, the company now represented by the official liquidator besides the five directors and the Pondicherry Industrial Promotion Development and Investment Corporation ltd. represented by its managing director. The official liquidator has filed his report stating that he has no objection to grant of leave subject to the terms (a) to (e) enumerated thereon. Besides, the learned official liquidator on the premise of section 529 of the Act of 1956 making the law of insolvency applicable to liquidation proceedings, would raise a question of some importance, which, according to him makes it obligatory on the person coming forward with an application under section 446 to make an election as to whether such a person is standing within or outside the liquidation proceedings in view of the fact that legal consequences to flow widely vary depending upon the election so made. The two points that arise for consideration in such circumstances are as follows : (1) Whether it is obligatory for the applicant coming with an application under section 446 of the Act of 1956 to make an election for his standing inside or outside liquidation proceedings and (2) Whether it is legally permissible to incorporate terms as suggested by the official liquidator whilst granting leave " Point No. 1 : A consideration of the salient provisions adumbrated in sections 28, 47, 48 and 61 of the Provincial Insolvency Act, 1920 (for short, "the Act of 1920"), will be necessary for determination of the question involved on this point. Section 28 deals with the effect of an order of adjudication. Sub-section (2) of section 28 prescribes that on the making of an order of adjudication, the whole of the property of the insolvent shall vest in the court or in a receiver as hereinafter provided, and shall become divisible among the creditors, and thereafter, except as provided by this Act, no creditor to whom the insolvent is indebted in respect of any debt provable under this Act shall during the pendency of the insolvency proceedings have any remedy against the property of the insolvent in respect of the debt or commence any suit or other legal proceeding except with the leave of the court and on such terms as the court may impose. It is but necessary to note in this context the provisions of sub-section (6) of the same section which provides that nothing in the section shall affect the power of any secured creditor to realise or otherwise deal with his security, in the same manner as he would have been entitled to realise or deal with it if this section had not been passed. The sub-section does not entitle the secured creditor to ignore the insolvency proceedings altogether or to treat the court or receiver as non-existent. It only saves the power of the secured creditor to realise his security or to otherwise deal with it and authorises him to do so in the same manner as he would have done had the section not been passed. The power of a secured creditor is to realise his money by the sale of the mortgaged property. The manner in which that right can be exercised is to file a suit, obtain a decree, get it executed and get the property sold in execution of that decree. While proceeding against the property of the insolvent for the realisation of his mortgage debt, he must implead the court or the receiver, because the equity of redemption vests in the court or the receiver, in view of the order of adjudication and in their absence the security cannot be realised. Section 47 deals with various ways of satisfaction of debts by realisation of the security. The section gives him three options. The first one is that he can realise his security and if there is something left due to him, then to come and prove for the balance. The second option is that he has to give up his security and to come into liquidation ranking with other creditors and take his share in the distribution of the dividends. The third option is to value his security and to come into liquidation and prove for any dues, that according to him, remain outstanding in respect of his debt on the valuation of his security. Section 48 deals with payment of interest. The section deals with two types of cases, namely, (1) where there is no provision for payment of interest in the agreement between the parties and (2) where there is an agreement to pay interest. In both the cases, the section provides for payment of interest not exceeding six per cent. per annum only up to the date of adjudication. Section 61 dealing with priority of debts provides that where there is any surplus after payment of the debts, it shall be applied in payment of interest from the date on which the debtor is adjudged an insolvent at the rate of six per cent. per annum on all debts entered in the schedule. This means that the proceedings after the date of adjudication should be deemed to have affected all the creditors in the same way and there is no reason why a difference should be made between one set of creditors and another set of creditors. This provision applies to all debts entered in the schedule whether there was or was not a stipulation between the creditors and the debtors as regards some of the debts about payment of interest. Therefore, interest after the date of adjudication is payable not only on debts which carried interest but also on debts entered in the schedule and which carried no interest. It is to be noted here that under insolvency, the ordinary rule is that all interest ceases once there is an insolvency and no interest is ordinarily permissible to be granted after the presentation of a petition. It is only under sections 48 and 61 of the Act of 1920 read together that the insolvency court has the jurisdiction to grant interest under certain circumstances. as indicated above. From a conspectus of various provisions of the Act of 1920, referred to above, it is crystal clear that it is not obligatory for the applicant to specifically say in so many words that he is, standing inside or outside the liquidation at the time of making an application under section 446 of the Act of 1956, and it is open to him to prove the balance due to him after taking the net amount realised by him from the security by the institution of proceedings in a court of law and for the balance due he will be recovering as an ordinary creditor and he will be entitled to payment of interest only if there is any surplus available after effecting payment to all the credtitors and that too at six per cent. per annum, provided he joins the schedule of creditors in the insolvency proceedings for the proof of the balance of his debt before the insolvent is discharged. The synonym of the word balance used in section 47 (1) of the Provincial Insolvency Act, is of paramount importance which calls for determination, so as to avoid any confusion regarding the amount provable in liquidation proceedings before the official liquidator by a secured creditor, after realisation of the amount due to him by exhausting the security offered to him. The learned official liquidator would submit that when the company goes into liquidation, a secured creditor may realise his security and prove for any balance outstanding and in that case, the remaining assets of the company would alone be liable for such principal and interest as was due on the date of the order of winding up. This argument is repelled by learned counsel on the other side by stating that the interest due after the date of liquidation is not to be excluded from the balance which is allowed to be proved under section 47 (1), as section 48 has no application at all to secured creditors. In support of his submission, the learned official liquidator would place reliance upon the definition of "secured creditor" under section 2 (e) which is as follows : "'secured creditor'means a person holding a mortgage, charge or lien on the property of the debtor or any part thereof as a security for a debt due to him from the debtor " * He also placed reliance on the decisions in Ram Chand v. Bank of Upper India Ltd. , Delhi, 1922 ILR (Lah) 59 1922 AIR (Lah) 281 and H. Oppenheimer v. M. E. Moolla and Sons Ltd. , 1929 ILR (Rang) 514 1930 AIR (Rang)47. Learned counsel for the other side placed implicit reliance on the decision in Sharfuzzaman v. H. Hunter, 1930 AIR (Oudh) 20. The learned official liquidator, placing reliance on the definition of "secured creditor", extracted above, would submit with all force and vehemence that the moment the security gets exhausted, in realisation of the amount due to the secured creditor, by sale, and if there is any balance due, there is no meaning in stating that for such balance due, the status of the secured creditor would remain unaffected. The sordid fact in the context of such a situation is that he has to be construed as an ordinary unsecured creditor for the balance due to him, because his position can, by no stretch of imagination, be stated to be better than that of other unsecured creditors in the insolvency proceedings. This submission of his gets reinforced and strengthened by the ratio laid down in the two decisions relied upon by him, cited above. In Ram Chand v. Bank of upper India Ltd. , Delhi, 1922 ILR (Lah) 59 1922 AIR (Lah) 281, it was held as follows (at page 285 of AIR 1922 Lah) : "as far as possible the rules of bankruptcy are applicable to liquidation matters. When a company goes into liquidation, a secured creditor may realise his security and prove for any balance there may be outstanding. The remaining assets of the company would in that case only be liable for such principal and interest as was due on the date of the winding up order. A secured creditor in the case of a liquidation is on the same footing as in that of insolvency proceedings. The property hypothecated is thus liable for the whole claim, principal and interest up to the date of realisation, and it is only the liability of the remaining assets that could be affected by the winding up order. " * In H. Oppenheimer v. M. E. Moolla and Sons Ltd. , 1929 ilr (Rang) 514 1930 AIR (Rang) 47, the following was the view taken (p. 48) : "in the liquidation proceedings of an insolvent company a secured creditor, after having exhausted his security cannot in proving as regards the balance of his debt unsatisfied include interest after the date of the winding up order. . . So far as the unsecured portion of their debts is concerned the provisions of the Insolvency Act, generally, do not suggest any intention of putting secured creditors on a more favourable footing than unsecured. " * In Sharfuzzaman v. H. Hunter, 1930 AIR (Oudh) 20, the view taken was as follows : "a secured creditor who has advantages of security may remain outside the Act. He can realise upon his security. The extent to which he realises on his security will reduce the estate in insolvency. But he obtains at first no part in the dividend and is unaffected by the proceedings. Should, however, the amount of realisation be less than the amount due to him he is given the special privilege of proving for the balance. This balance is the difference between the decretal amount and the amount realised. When he has proved he will not obtain any more than his proportionate share in the estate. He will be put then on the footing of an unsecured creditor. " * Considering the contentions of either side and the decisions cited by learned counsel on both sides I am affixing my seal of approval to the submission of the learned official liquidator, getting solid support in the decisions, Ram Chand v. Bank of Upper India Ltd. , Delhi, 1922 ilr (Lah) 59 1922 AIR (Lah) 281 and H. Oppenheimer v. M. E. Moolla and Sons ltd. , 1929 ILR (Rang) 514 1930 AIR (Rang) 47. The decision cited by the other side, viz. , Sharfuzzaman v. H. Hunter, 1930 AIR (Oudh) 20, is of no help, for the simple reason that that decision had not taken into account the significant change in the position of an unsecured creditor, for the balance due to him, after the realisation of his amount exhausting the security by way of sale. To put it otherwise, that decision proceeded on the basis that the position of the secured creditor remains unaltered in any eventuality. The further elucidation therein was that the secured creditor had been given the special privilege of proving for the balance representing the difference between the decretal amount and the amount realised by the sale of the security. This position is rather inconceivable when especially the learned judge in that case proceeded on the footing that the secured creditor is on the same footing of an unsecured creditor respecting the balance due to him. As already submitted by the learned official liquidator, the position of a secured creditor cannot at all be stated to be in a better position than that of the other unsecured creditors, the moment the secured creditor comes before the insolvency proceedings for the proof of the balance due to him, after realisation of his security and in such a contingency the remaining assets of the company would be liable for principal and interest as was due on the date of the winding up order. If this position is not made clear, while granting leave to continue the proceedings initiated under section 446 (1) of the Act, a chaotic and confounding situation would be created when he appears before the official liquidator for the proof of the balance due to him. The official liquidator would be placed in a delicate position and it will be embarassing for him to decide whether to honour the decree of a civil court, in the sense of allowing the creditor to make a claim before him in respect of the entirety of the balance due to him, which is inclusive of interest up to the date of realisation, or to restrict the claim of the secured creditor only to principal and interest up to the date of the winding up order. In this view of the matter, the balance due to the secured creditor coming before the insolvency or liquidation proceedings, must be made specifically clear, beyond the pale of controversy. In these circumstances, I agree with the contention of the learned official liquidator and I answer the point accordingly. Point No. 2 : The incorporation of various terms, as suggested by the learned official liquidator in his report, in the order granting leave falls for consideration in this point. It is not as if the court is bereft of power to incorporate any terms while granting such leave and it is explicitly made clear by the phraseology, namely, "except by leave of the court and subject to such terms as the court may impose" * incorporated in sub-section (1) of section 446 of the act, 1956. The incorporation of such terms is perhaps contemplated to safeguard the interests of the general body of creditors, contributories and workmen affected by liquidation proceedings. The incorporation of the terms (a) to (e)as suggested by the official liquidator in his report can by no stretch of imagination be construed to be in any way affecting the interest of the applicant, in the sense of the same causing prejudice to his cause and that apart, the learned official liquidator acting as an officer of the court, had simply done his duty in requesting the court to incorporate all those terms in the interests of all persons affected by liquidation and, therefore, it is that all those terms deserve to be incorporated in the order granting leave. The point is answered accordingly. In the result, the petition is allowed granting leave to the applicant as prayed for, subject to the following conditions : (a) In the event of the applicant-bank obtaining a decree, it shall not execute it against the assets and effects of the company in liquidation not forming part of the suit property (b) In the event of the applicant-bank obtaining a decree and realising the security, the applicant-bank is precluded from proving before the learned official liquidator for any deficiency arising out of the sale of the security, except and to the extent provided in section 529 of the Act of 1956 (c) In view of the provisions contain in sections 520 and 529a of the act, 1956 in the event of the applicant-bank realising the security pursuant to the decree in the suit in O. S. No. 427 of 1984 on the file of the Principal subordinate Judge, Pondicherry, the applicant-bank can appropriate the sale proceeds of the said security subject to and without prejudice to the rights and claims of the workmen of the company in liquidation over the said sale proceeds (d) The grant of leave in this application to the applicant-bank will not be construed as grant of leave to the Pondicherry industrial Promotion Development and Investment Corporation Limited (seventh defendant) which has not moved this court for leave to continue the suit in O. S. No. 427 of 1984 (e) The grant of leave on terms as above to the applicant-bank does not amount to grant of leave to the Pondicherry Industrial promotion Development and Investment Corporation Limited (seventh defendant) to work out its rights, if any, as a purported secured creditor of the company in liquidation through a court of law (f) The applicant bank secured creditor can prove only for the deficiency of the balance amount representing the principal and interest calculated up to the date of the order of winding up.