RAJASTHAN STATE INDUSTRIAL Vs. OFFICIAL LIQUIDATOR OF SHREE

JUDGEMENT

(1.) THIS application is filed by the Rajasthan State Industrial Development & Investment Corporation Ltd., Jaipur under Section 446(2) and (4) read with Section 457(3) of the Companies Act, 1956 and rules 6 and 9 of the Company (Court) Rules, 1959.

(2.) IN this application prayer has been made by the applicant to grant it leave to remain out of the winding -up proceedings and to realise its dues by exercising powers under the State Financial Corporation Act, 1951 by selling all the assets of the Company in respect of which mortgage/ charge/hypothecation has been created in favour of the applicant as a secured creditor by taking the possession of the mortgaged and hypothecated properties from the Official Liquidator who is having possession of the said assets after winding up order dated 16 -3 -2000 passed by this Court. It is prayed to pass any other further order by the Court as it may deem fit and proper in the facts and circumstances of the case in favour of the applicant.

(3.) IN reply the Official Liquidator has come up with the case that after taking possession of the assets of the company in liquidation by him on 6 -4 -2000, he vide its letter dated 5 -5 -2000 asked the applicant -company as to whether it intended to remain outside the winding -up proceedings and if so to move the necessary application before the Court, but inspite of the said communication, the applicant -company has not chosen to move appropriate application before this Court. It is only now after a period of almost one year that the present application has been filed. In para 9 of the reply it is stated that the applicant is liable to pay an amount of Rs. 2,466 per month towards pro rata share of the security expenses being incurred by the Official Liquidator. But after February 2001, the applicant has not deposited with the Official Liquidator its share of Rs. 2,466 p.m. towards the security expenses for the properties of the company in liquidation. Another objection has been raised that the applicant -company is liable to first get the debt determined by way of filing an application under Section 19 of the Banks and Financial Institutions Act, 1993 as like other financial institutions and then only it is entitled to get the said debt satisfied through the assets and properties of the respondent -company. Alternatively it is submitted that the applicant to file its claim before the Official Liquidator for determination of its debt against the respondent -company in liquidation and then only to proceed for recovery of the same. In reply it is prayed that the application filed by the applicant -company may be decided accordingly.