As per the case facts, the Industrial Development Bank of India appealed a High Court judgment which held that customs authorities had the first right to sell imported goods and ...
2023INSC746 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
CIVIL APPEAL NO. 2568 OF 2013
INDUSTRIAL DEVELOPMENT BANK OF INDIA
(THROUGH STRESSED ASSETS
STABILIZATION FUND CONSTITUTED BY THE
GOVERNMENT OF INDIA) ..... APPELLANT
VERSUS
SUPERINTENDENT OF CENTRAL EXCISE
AND CUSTOMS AND OTHERS .....RESPONDENTS
J U D G M E N T
SANJIV KHANNA, J.
This appeal by Industrial Development Bank of India
1
takes
exception to the judgment dated 26
th
August 2008 passed by the
full bench of the Andhra Pradesh High Court in Original Side
Appeal No. 1 of 2005
2
, whereby it has been held that
notwithstanding the winding up order dated 1
st
December 2003 in
the case of M/s. Sri Vishnupriya Industries Limited
3
, and the
provisions of Section 529A and 530 of the Companies Act, 1956
4
,
1 For short, ‘IDBI’.
2 The Superintendent of Central Excise and Customs v. M/s. Sri Vishnupriya Industries Ltd. (in liqn.)
and Others.
3 For short, ‘the Company’.
4 For short, ‘Companies Act’.
Civil Appeal No. 2568 of 2013 Page 1 of 38
the customs authorities have the first right to sell the imported
goods under the Customs Act, 1962
5
and adjust the sale proceeds
towards payment of customs duty.
2.The Company, during the period 1994-2000, was granted and
availed of financial assistance from the appellant – IDBI. As a
security, the Company had hypothecated movable properties and
created equitable mortgage of immovable properties by depositing
title deeds. The charge was duly registered with the Registrar of
Companies. In addition, the promoters and guarantors had
furnished personal guarantees.
3.In the present case, we are concerned with the hypothecated
movable property, namely, machinery and its components,
imported from Italy during the years 1998-1999. The goods,
packed in 128 wooden containers, were warehoused in a private
bonded warehouse by executing bond in terms of Section 59(1) of
the Customs Act. The goods were initially warehoused for one
year, which period was extended. However, as the goods were not
cleared for home consumption in terms of Section 47 of the
Customs Act, even after expiry of the extended period of
warehousing, show-cause notices were issued
6
, and after
considering the explanation given by the Company, orders-in-
5 For short, ‘Customs Act’.
6 Show Cause Notices dated 17
th
February 2000 and 10
th
April 2000.
Civil Appeal No. 2568 of 2013 Page 2 of 38
original dated 15
th
September 2000
7
and 10
th
October 2000
8
were
passed confirming levy of customs duty of Rs.3,27,22,191/- and
Rs.10,48,29,017/-, respectively. When the Company did not pay
the duty, the authorities had passed an order
9
dated 19
th
December 2000 for sale of the warehoused goods for recovery of
the customs duty, relying on the powers conferred under Section
72(2) read with Section 142 of the Customs Act. Thereafter,
another order
10
under Section 72(2) of the Customs Act was
passed on 27
th
February 2002 for detention and sale of the
warehoused goods for recovery of Rs.22,20,38,112/-. On failure to
pay the duty, steps were initiated for auctioning the imported
goods and the Company was informed.
4.In the meanwhile, Company Petition No. 168 of 2002 was filed
before the Andhra Pradesh High Court for winding up of the
Company. This petition was admitted on 1
st
April 2003. The
Company was directed to be wound up vide the order passed on
1
st
December 2003. Thereupon, the Official Liquidator filed an
application
11
under Section 468 of the Companies Act read with
Rules 9 and 11(b) of the Companies (Court) Rules, 1959
12
for
directing the customs authorities to handover possession of the
7 Order in Original No. 1/2000 (Customs).
8 Order in Original No. 2/2000 (Customs).
9 C. No.VIII/16/1/2000-Adjn.
10 C. No.VIII/72/1/98-Customs.
11 C.A. No. 906/2004.
12 For short, ‘Company Court Rules’.
Civil Appeal No. 2568 of 2013 Page 3 of 38
imported goods, which had been put up for auction for payment of
the customs duty. This application was allowed by a single judge
of the High Court vide the order dated 3
rd
September 2004
observing, inter alia, that the customs authorities had not followed
the procedure contemplated under the Customs Act before
passing the order under Section 72 of the Customs Act, in the
absence of which the detention orders were void ab initio and
non-est in the eyes of law. Secondly, on an order of winding up
being passed, in terms of Section 456 of the Companies Act, the
assets of the company in liquidation, by operation of law, vest in
the Official Liquidator, who alone was entitled to deal with the
effects and actionable claims. Reference was also made to
Section 447 of the Companies Act
13
. Consequently, as the winding
up order had been passed against the Company but sale was yet
to be effected, the Official Liquidator was duty bound to take into
his custody and control all properties, effects and actionable
claims, including the movable property, that is, the imported
goods. Official Liquidator, as the custodian of all the properties of
the Company, functions under the directions of the Company
Court. Any person making any claim against the Company has to
prove his claim before the Official Liquidator by placing necessary
13 We shall subsequently refer to Sections 456 and 447 of the Companies Act, as these provisions
are of relevance.
Civil Appeal No. 2568 of 2013 Page 4 of 38
material in support. Accordingly, the submission regarding the
custom authorities’ entitlement and right under the Customs Act to
sell the imported goods to realise their dues was rejected.
5.On the customs authorities preferring an intra-court appeal, the
mater was referred to the full bench of the Andhra Pradesh High
Court on the question of whether the claim of a secured creditor
has precedence over the right of the customs authorities to
recover the customs duty. The full bench, relying on and approving
the ratio of the Calcutta High Court in Collector of Customs v.
Dytron (India) Ltd.
14
, disagreed with the view expressed by a full
bench of the Madras High Court in UTI Bank Ltd. v. Deputy
Commissioner of Central Excise and Another
15
. The full bench
of the Andhra Pradesh High Court has held that Section 468
16
of
the Companies Act has no application as it empowers the
Company Court to require the ‘contributory’ to pay, deliver,
surrender or transfer any money, property or books and papers in
his custody or control. The word ‘contributory’, defined in Section
428 of the Companies Act, does not include the customs
department/authorities. Observations relying on the ratio in
14 1998 SCC OnLine Cal 674.
15 (2007) 135 Company Cases 329 (Mad.). On the aspect of the Karnataka Land Revenue Act,
1964, see judgment of this Court in Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. and Others,
(2000) 5 SCC 694.
16 Section 468 of the Companies Act has been quoted subsequently.
Civil Appeal No. 2568 of 2013 Page 5 of 38
Dytron (India) Ltd. (supra) have been made, a decision which we
would advert to later.
6.Aggrieved, the appellant – IBDI, as a secured creditor, has filed
the present appeal. While issuing notice in the appeal vide order
dated 3
rd
May 2010, it was directed that status quo shall be
maintained. Thereafter, vide order dated 5
th
October 2017, the
customs authorities, along with the appellant – IDBI and the
Official Liquidator, were permitted to sell the goods subject to
deposit of the auction sale proceeds with the Registry of this
Court. The sale proceeds vide two demand drafts of Rs.
1,39,34,208/- and Rs. 33,343/- dated 20
th
January 2023 have
been deposited in this Court and converted into a fixed deposit
receipt. The auction proceeds are to be paid as per the outcome
of the present appeal.
7.In the context of the present appeal, we would like to reproduce
Sections 529A and 530 of the Companies Act, which read as
under:
“529A. Overriding preferential payments.— (1)
Notwithstanding anything contained in any other
provision of this Act or any other law for the time being
in force, in the winding up of a company,—
(a) workmen's dues; and
Civil Appeal No. 2568 of 2013 Page 6 of 38
(b) debts due to secured creditors to the extent such
debts rank under clause (c) of the proviso to sub-
section (1) of Section 529 pari passu with such dues,
shall be paid in priority to all other debts.
(2) The debts payable under clause (a) and clause (b)
of sub-section (1) shall be paid in full, unless the
assets are insufficient to meet them, in which case
they shall abate in equal proportions.”
“530. Preferential payments.—(1) In a winding up,
subject to the provisions of Section 529-A, there shall
be paid in priority to all other debts—
(a) all revenues, taxes, cesses and rates due from the
company to the Central or a State Government or to a
local authority at the relevant date as defined in clause
(c) of sub-section (8) and having become due and
payable within the twelve months next before that
date;
(b) all wages or salary (including wages payable for
time or piece work and salary earned wholly or in part
by way of commission) of any employee, in respect of
services rendered to the company and due for a
period not exceeding four months within the twelve
months next before the relevant date, subject to the
limit specified in sub-section (2);
(c) all accrued holiday remuneration becoming
payable to any employee, or in the case of his death to
any other person in his right, on the termination of his
employment before or by the effect of, the winding up
order or resolution;
(d) unless the company is being wound up voluntarily
merely for the purposes of reconstruction or of
amalgamation with another company, all amounts due,
in respect of contributions payable during the twelve
months next before the relevant date, by the company
as the employer of any persons, under the Employees'
State Insurance Act, 1948, (34 of 1948), or any other
law for the time being in force;
Civil Appeal No. 2568 of 2013 Page 7 of 38
(e) unless the company is being wound up voluntarily
merely for the purposes of reconstruction or of
amalgamation with another company, or unless the
company has, at the commencement of the winding
up, under such a contract with insurers as is
mentioned in Section 14 of the Workmen's
Compensation Act, 1923, rights capable of being
transferred to and vested in the workman, all amounts
due in respect of any compensation or liability for
compensation under the said Act in respect of the
death or disablement of any employee of the
company;
(f) all sums due to any employee from a provident
fund, a pension fund, a gratuity fund or any other fund
for the welfare of the employees, maintained by the
company; and
(g) the expenses of any investigation held in
pursuance of Section 235 or 237, in so far as they are
payable by the company.
(2) The sum to which priority is to be given under
clause (b) of sub-section (1), shall not, in the case of
any one claimant, exceed such sum as may be
notified by the Central Government in the Official
Gazette:
(3) Where any compensation under the Workmen's
Compensation Act, 1923 (8 of 1923), is a weekly
payment, the amount due in respect thereof shall, for
the purposes of clause (e) of sub-section (1), be taken
to be the amount of the lump sum for which the weekly
payment could if redeemable, be redeemed if the
employer made an application for that purpose under
the said Act.
(4) Where any payment has been made to any
employee of a company,—
(i) on account of wages or salary; or
(ii) to him, or in the case of his death, to any other
person in his right on account of accrued holiday
remuneration,
Civil Appeal No. 2568 of 2013 Page 8 of 38
out of money advance by some person for that
purpose, the person by whom the money was
advanced shall, in a winding up, have a right of priority
in respect of the money so advanced and paid, up to
the amount by which the sum in respect of which the
employee or other person in his right, would have
been entitled to priority in the winding up has been
diminished by reason of the payment having been
made.
(5) The foregoing debts shall—
(a) rank equally among themselves and be paid in full,
unless the assets are insufficient to meet them, in
which case they shall abate in equal proportions; and
(b) so far as the assets of the company available for
payment of general creditors are insufficient to meet
them, have priority over the claims of holders of
debentures under any floating charge created by the
company, and be paid accordingly out of any property
comprised in or subject to that charge.
(6) Subject to the retention of such sums as may be
necessary for the costs and expenses of the winding
up, the foregoing debts shall be discharged forthwith
so far as the assets are sufficient to meet them, and in
the case of the debts to which priority is given by
clause (d) of sub-section (1), formal proof thereof shall
not be required except in so far as may be otherwise
prescribed.
(7) In the event of a landlord or other person
distraining or having distrained on any goods or effects
of the company within three months next before the
date of a winding up order, the debts to which priority
is given by this section shall be a first charge on the
goods or effects so distrained on, or the proceeds of
the sale thereof:
Provided that, in respect of any money paid under any
such charge, the landlord or other person shall have
the same rights of priority as the person to whom the
payment is made.
Civil Appeal No. 2568 of 2013 Page 9 of 38
(8) For the purposes of this section—
(a) any remuneration in respect of a period of holiday
or of absence from work through sickness or other
good cause shall be deemed to be wages in respect of
services rendered to the company during that period;
(b) the expression “accrued holiday remuneration”
includes, in relation to any person, all sums which by
virtue either of his contract of employment or of any
enactment (including any order made or direction
given under any enactment), are payable on account
of the remuneration which would, in the ordinary
course, have become payable to him in respect of a
period of holiday, had his employment with the
company continued until he became entitled to be
allowed the holiday;
(bb) the expression “employee” does not include a
workman; and
(c) the expression “the relevant date” means—
(i) in the case of a company ordered to be wound up
compulsorily, the date of the appointment (or first
appointment) of a provisional liquidator, or if no such
appointment was made, the date of the winding up
order, unless in either case the company had
commenced to be wound up voluntarily before that
date; and
(ii) in any case where sub-clause (i) does not apply,
the date of the passing of the resolution for the
voluntary winding up of the company.
(9) This section shall not apply in the case of a winding
up where the date referred to in sub-section (5) of
Section 230 of the Indian Companies Act, 1913 (7 of
1913), occurred before the commencement of this Act,
and in such a case, the provisions relating to
preferential payments which would have applied if this
Act had not been passed, shall be deemed to remain
in full force.”
Civil Appeal No. 2568 of 2013 Page 10 of 38
8.Section 529A of the Companies Act, a non-obstante provision, is
to be given primacy in case of conflict, and consequently, in case
of disharmony, this section will override the discordant provisions
of the Companies Act and all other enactments in force. Section
529A of the Companies Act was enforced by Act No. 35 of 1985
with effect from 24
th
May 1985. Therefore, when there is a clash
and disagreement between section 529A of the Companies Act
and another provision of the Companies Act or any other
enactment in force on 24
th
May 1985, Section 529A prevails and
the debts are to be paid in terms of Section 529A of the
Companies Act.
9.As per clause (b) of sub-Section (1) to Section 529A of the
Companies Act, the debts due to secured creditors to the extent
such debts under clause (c) of the proviso to sub-Section (1) to
Section 529
17
rank pari passu with the workmen’s dues
18
, are to be
paid in priority to all other debts. Sub-section (2) to Section 529A
states that the debts payable under clauses (a) and (b) of sub-
Section (1) to Section 529A shall be paid in full, unless the assets
are insufficient to meet them, in which case they shall abate in
equal proportions.
17 Clause (c) to the proviso to Section 529 has been quoted subsequently.
18 The expression ‘Workmen’s dues’ in Sections 529, 529A and 530 of the Companies Act is defined
and restricted under sub-section (3)(b) to Section 529 of the Companies Act.
Civil Appeal No. 2568 of 2013 Page 11 of 38
10.In the present case, we are not required to examine the inter-play
and principle of proportionality with reference to clauses (a) and
(b) to Section 529A of the Companies Act, albeit we must give full
effect to and enforce the non-obstante nature of Section 529A of
the Companies Act, whereby, notwithstanding anything contained
in any other provision of the Companies Act or any other law for
the time being in force on 24
th
May 1985, on winding up of a
company, the debt due to the workmen and the debt due to
secured creditors as specified, rank pari passu and are to be paid
in the manner prescribed therein in priority to all other debts.
11.Section 530 of the Companies Act, which was amended and
substituted by Act No. 35 of 1985 with effect from 24
th
May 1985,
states that Section 530 is subject to provisions of Section 529A of
the Companies Act. Section 530 of the Companies Act deals with
preferential payments that are a level below the overriding
preferential payments under Section 529A of the Companies Act.
Clause (a) to Section 530(1) of the Companies Act confers
preferential status to all revenue taxes, cesses, and rates ‘due’ to
the Central or the State government or to a local authority on the
‘relevant date’ as defined in clause (c) to sub-section (8) to
Section 530 of the Companies Act, which have become ‘due and
Civil Appeal No. 2568 of 2013 Page 12 of 38
payable’ within the twelve months next before the relevant date.
The taxes, cesses and rates due to the Central and State
governments or local authorities under Section 530 of the
Companies Act cannot be given priority over the payments/debts
mentioned in Section 529A of the Companies Act. It is, therefore,
beyond debate that the provisions of Section 529A of the
Companies Act prevail over Section 530 of the Companies Act.
12.We shall subsequently interpret the expression debts ‘due’ in the
first portion of clause (a) to Section 530(1) of the Companies Act
and the words ‘become due and payable within the twelve months
next before that date’ in the latter portion of clause (a) to Section
530(1) of the Companies Act, but at this stage, it is relevant to
take on record the ‘relevant date’ as defined in clause (c) to sub-
Section (8) to Section 530 of the Companies Act. As per sub-
clause (i) to clause (c) to sub-Section (8) to Section 530 of the
Companies Act, the ‘relevant date’ in case where a company has
been ordered to be wound up compulsorily, shall be the date of
appointment or first appointment of a provisional liquidator, or if no
such appointment is made, the date of the winding up order,
unless the company had commenced to be wound up voluntarily
before that date. The present case is one of compulsory winding
up and, therefore, the ‘relevant date’, in the absence of
Civil Appeal No. 2568 of 2013 Page 13 of 38
appointment of a provisional liquidator, would be the date on
which the winding up order was passed against the Company,
which is 1
st
December 2003
19
.
13.Again, before we proceed to interpret the expressions debt ‘due’
and debt ‘due and payable’ in clause (a) to Section 530(1) of the
Companies Act, it is relevant to take note of the effect of Sections
447, 456, 468, 528 and 529 of the Companies Act, as well as the
object and purpose behind these provisions. The relevant sections
read as follows:
“447. Effect of winding up order.— An order for
winding up a company shall operate in favour of all the
creditors and of all the contributories of the company
as if it had been made on all the joint petition of a
creditor and of a contributory.”
“456. Custody of company's property—(1) Where a
winding up order has been made or where a
provisional liquidator has been appointed the liquidator
or the provisional liquidator, as the case may be, shall
take into his custody or under his control, all the
property, effects and actionable claims to which the
company is or appears to be entitled.
(1-A) For the purpose of enabling the liquidator or the
provisional liquidator, as the case may be, to take into
his custody or under his control, any property, effects
or actionable claims to which the company is or
appears to be entitled, the liquidator or the provisional
liquidator, as the case may be, may by writing request
the Chief Presidency Magistrate or the District
Magistrate within whose jurisdiction such property,
effects or actionable claims or any books of account or
other documents of the company may be found, to
19 The Official Liquidator was appointed by the High Court vide the order dated 1
st
December 2003 in
Company Petition No. 168 of 2002.
Civil Appeal No. 2568 of 2013 Page 14 of 38
take possession thereof, and the Chief Presidency
Magistrate or the District Magistrate may thereupon
after such notice as he may think fit to give to any
party, take possession of such property, effects,
actionable claims books of account or other
documents and deliver possession thereof to the
liquidator or the provisional liquidator.
(1-B) For the purpose of securing compliance with the
provisions of sub-section (1-A), the Chief Presidency
Magistrate or the District Magistrate may take or cause
to be taken such steps and use or cause to be used
such force as may in his opinion be necessary.”
“468. Delivery of property to liquidator.—The
Tribunal may, at any time after making a winding up
order, require any contributory for the time being on
the list of contributories, and any trustee, receiver,
banker, agent, officer or other employee of the
company, to pay, deliver, surrender or transfer
forthwith, or within such time as the Tribunal directs, to
the liquidator, any money, property or books and
papers in his custody or under his control to which the
company is prima facie entitled.”
“528. Debts of all descriptions to be admitted to
proof.— In every winding up (subject, in the case of
insolvent companies, to the application in accordance
with the provisions of this Act of the law of insolvency),
all debts payable on a contingency, and all claims
against the company, present or future, certain or
contingent, ascertained or sounding only in damages,
shall be admissible, to proof against the company, a
just estimate being made, so far as possible, of the
value of such debts or claims as may be subject to any
contingency, or may sound only in damages, or for
some other reason may not bear a certain value.”
“529. Application of insolvency rules in winding up
of insolvent companies.— (1) In the winding up of an
insolvent company, the same rules shall prevail and be
observed with regard to—
(a) debts provable;
Civil Appeal No. 2568 of 2013 Page 15 of 38
(b) the valuation of annuities and future and contingent
liabilities; and
(c) the respective rights of secured and unsecured
creditors;
as are in force for the time being under the law of
insolvency with respect to the estates of persons
adjudged insolvent:
Provided that the security of every secured creditor
shall be deemed to be subject to a pari passu charge
in favour of the workmen to the extent of the
workmen's portion therein, and where a secured
creditor, instead of relinquishing his security and
proving his debt, opts to realise his security,—
(a) the liquidator shall be entitled to represent the
workmen and enforce such charge;
(b) any amount realised by the liquidator by way of
enforcement of such charge shall be applied rateably
for the discharge of workmen's dues; and
(c) so much of the debt due to such secured creditor
as could not be realised by him by virtue of the
foregoing provisions of this proviso or the amount of
the workmen's portion in his security, whichever is
less, shall rank pari passu with the workmen's dues for
the purposes of Section 529-A.
(2) All persons who in any such case would be entitled
to prove for and receive dividends out of the assets of
the company, may come in under the winding up, and
make such claims against the company as they
respectively are entitled to make by virtue of this
section.
Provided that if a secured creditor instead of
relinquishing his security and proving for his debt
proceeds to realise his security, he shall be liable to
pay his portion of the expenses incurred by the
liquidator (including a provisional liquidator, if any) for
the preservation of the security before its realization by
the secured creditor.
Civil Appeal No. 2568 of 2013 Page 16 of 38
Explanation.—For the purposes of this proviso, the
portion of expenses incurred by the liquidator for the
preservation of a security which the secured creditor
shall be liable to pay shall be the whole of the
expenses less an amount which bears to such
expenses the same proportion as the workmen's
portion in relation to the security bears to the value of
the security.
(3) For the purposes of this section, Section 529-A and
Section 530,—
(a) “workmen”, in relation to a company, means the
employees of the company, being workmen within the
meaning of the Industrial Disputes Act, 1947;
(b) “workmen's dues”, in relation to a company, means
the aggregate of the following sums due from the
company to its workmen, namely:—
(i) all wages or salary including wages payable for
time or piece work and salary earned wholly or in
part by way of commission of any workman, in
respect of services rendered to the company and
any compensation payable to any workman under
any of the provisions of the Industrial Disputes
Act, 1947;
(ii) all accrued holiday remuneration becoming
payable to any workman, or in the case of his
death to any other person in his right, on the
termination of his employment before, or by the
effect of, the winding up order or resolution;
(iii) unless the company is being wound up
voluntarily merely for the purposes of
reconstruction or of amalgamation with another
company, or unless the company has, at the
commencement of the winding up, under such a
contract with insurers as is mentioned in Section
14 of the Workmen's Compensation Act, 1923,
rights capable of being transferred to and vested
in the workman, all amounts due in respect of any
compensation or liability for compensation under
Civil Appeal No. 2568 of 2013 Page 17 of 38
the said Act in respect of the death or disablement
of any workman of the company;
(iv) all sums due to any workman from a provident
fund, a pension fund, a gratuity fund or any other
fund for the welfare of the workmen, maintained
by the company;
(c) “workmen's portion”, in relation to the security of
any secured creditor of a company, means the amount
which bears to the value of the security the same
proportion as the amount of the workmen's dues bears
to the aggregate of—
(i) the amount of workmen's dues; and
(ii) the amounts of the debts due to the secured
creditors.”
14.As per Section 447 of the Companies Act, an order for winding up
of a company operates in favour of all the creditors as if it had
been made on a joint petition of a creditor. All creditors are treated
as petitioning creditors. Section 456 of the Companies Act
requires a provisional liquidator or a liquidator, as the case may
be, to take all properties and action claims, to which the company
is or appears to be entitled, into his custody or under his control.
Sub-section (1A) to Section 456 of the Companies Act entitles the
liquidator or the provisional liquidator to write a request to the
Chief Presidency Magistrate or the District Magistrate within
whose jurisdiction such property, effects or actionable claims etc.
of the company may be found, and, thereupon, these officers,
Civil Appeal No. 2568 of 2013 Page 18 of 38
after giving notice to the party, are to take possession of the
properties, effects, actionable claims, books of accounts, etc and
deliver the possession to the liquidator or provisional liquidator.
Sub-section (1B) to Section 456 of the Companies Act permits the
Chief Presidency Magistrate or the District Magistrate to take such
steps or use such force, as in his opinion may be necessary.
Section 468 of the Companies Act permits the tribunal/court to
direct any contributory, trustee, receiver, banker, agent, officer or
other employee of the company to pay, deliver, surrender or
transfer forthwith, or within such time as directed, to the liquidator,
any money, property, or books and papers in his custody and
control to which the company is prima facie entitled.
15.Sections 528 to 530 of the Companies Act fall under Chapter V -
‘Provisions Applicable to Every Mode of Winding Up’, under the
sub-heading ‘proof and ranking of claims’. Section 528 of the
Companies Act states that debts of all descriptions, including the
debts payable on contingency, and claims against the company,
present or future, ascertained or sounding only in damages, shall
be admissible to proof against the company, on a just estimate
being made of such debts as far as possible. Section 456 of the
Companies Act, inter alia, provides that all the property and effects
of the Company shall be deemed to be in the custody of the
Civil Appeal No. 2568 of 2013 Page 19 of 38
tribunal/court as from the date of the order for the winding up of
the Company.
16.The objective of giving jurisdiction to the Company Court/tribunal
during the process of liquidation of the Company is two-fold: First,
to ensure that the assets of a company in liquidation are amassed
and constellated to prevent a scramble and dissipation of the
assets of an insolvent company. Secondly, the Company
Court/tribunal is entrusted with paying off debts from the sale
proceeds of the assets so assimilated, according to the waterfall
mechanism provided for and specified under Sections 529, 529A
and 530 of the Companies Act. Accordingly, and with this
objective, Section 529A of the Companies Act refers to the
doctrine of pari passu in the proviso to sub-section (1) to Section
529, with reference to the claims inter se the workmen and the
secured creditors. Even otherwise, on a conspectus of these
sections, the principle applicable and underlying these provisions
is to stop alienation and preserve the assets on the date of the
bankruptcy, which date, in some cases, can relate back to the
date of filing of the winding up petition, as in case of execution of a
decree. This preservation is with a view to ensure the division and
application of the assets of the company being wound up, as it
Civil Appeal No. 2568 of 2013 Page 20 of 38
stood on the relevant date.
20
The payment must be made in terms
of the priority prescribed.
17.This Court in J.K. (Bombay) (P) Ltd. v. New Kaiser-I-Hind Spg.
and Wvg. Co. Ltd.
21
has held that once a winding up order is
passed, the assets of the company under liquidation are passed
under the control of the liquidator, whose statutory duty is to
realize them. Thereafter, the creditors are paid out by the
liquidator from the sale proceeds of the assets of the liquidated
company. The creditors have to be paid in terms of the waterfall or
priority mechanism. Therefore, payment has to be first made in
terms of Section 529A of the Companies Act to overriding
preferential creditors, then to preferential creditors in terms of
Section 530 of the Companies Act and lastly, payment has to be
made and distributed pari passu among the ordinary or unsecured
creditors. This objective and intent is also apparent when we
examine the Company Court Rules, as per which the liquidator is
to fix a date on or before which all creditors of the company are to
prove their debts or claims and to establish any title they may
have to priority under Section 530 of the Companies Act.
22
Not
only this, the rules enable a creditor to claim interest up to the
date of the winding up order, and in certain circumstances,
20 See – In Re Savin, [1872] L.R. 7 Ch. App. 760, 764.
21 (1970) 40 Comp Cas 689.
22 See – Rule 147, Companies (Court) Rules, 1959.
Civil Appeal No. 2568 of 2013 Page 21 of 38
payment of interest subsequent to the date of winding up.
23
There
is, however, an exception to the two-fold method, as has been
held in Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. and
Others
24
, which we will subsequently elucidate.
18.This brings us to the interpretation of the expressions debt ‘due’
and debt ‘due and payable’ in Section 530(1)(a) of the Companies
Act. The interpretation is no longer debatable in view of the
judgment of this Court in Rajratha Naranbhai Mills Co. Ltd. v.
Sales Tax Officer, Petlad
25
, which has approved the view taken
by D.A. Desai, J., in his judgment in Sales Tax Officer, Petlad v.
Rajratna Naranbhai Mills Co. Ltd. and Another
26
, a judgment,
which, we respectfully submit, forms the foundation of our
reasoning and ratio in the present case. This Court in Rajratha
Naranbhai Mills Co. Ltd. (supra), agreeing with the views
expressed by D.A. Desai, J. in Sales Tax Officer, Petlad (supra),
overruled the judgment of the division bench under challenge, for
several reasons, to hold that the words debt ‘due’ occurring in the
first part and the words debt ‘due and payable’ in the latter part of
Section 530(1)(a) of the Companies Act are different expressions
meant to convey different and not the same meaning. Therefore,
23 See – Rules 156 and 179, Companies (Court) Rules, 1959.
24 (2000) 5 SCC 694.
25 (1991) 3 SCC 283.
26 (1974) 44 Comp Cas 65 (Guj).
Civil Appeal No. 2568 of 2013 Page 22 of 38
for a government debt to be covered under clause (a) to Section
530(1) of the Companies Act, it must not only be a debt ‘due’, but
it must also be a debt ‘due and payable’ within twelve months next
before the relevant date. The requirements of the latter portion of
clause (a) to Section 530(1) of the Companies Act are dual and
cumulative, which is debt ‘due and payable’, and not one that is
‘due’. The debt ‘due’ must have become payable at any time
within twelve months next before the relevant date. The debt ‘due
and payable’ prior to twelve months next to the relevant date is not
a preferential debt in terms of Section 530(1)(a) of the Companies
Act. Such debt will rank pari passu with ordinary or unsecured
creditors, without any preferential treatment. In this regard, we
quote the following passages from the decision of this Court in
Rajratha Naranbhai Mills Co. Ltd. (supra):
“8. We have gone through both the judgments afore-
referred to very carefully and minutely and have heard
learned counsel on the conflicting decisions. There are
wide ranging discussions in the interpretative process
relating to the word ‘due’ occurring in the earlier part of
the provision and the words ‘due and payable’ in the
later part, and whether they are different expressions
meant to convey differently or they mean the same
thing. With due respect to the High Court, we feel that
relevant and important considerations and material
though available, which could go to interpret the
section purposively was overlooked, and at this
juncture we wish to put it to use.
xx xx Xx
Civil Appeal No. 2568 of 2013 Page 23 of 38
11. In A. Ramaiya's The Companies Act (11th edn.
1988) it has been noticed at page 1320 that Section
530 of the Companies Act, 1956 has been largely
recast and amended in the light of the following
recommendations (excerpted) of the Company Law
Committee in paragraph 218 of their Report:
xx xx xx
In this connection we should like to refer to a
memorandum that we received from the Central Board
of Revenue, on the question of a priority to be given to
crown demands generally and, in particular, to arrears
of income tax, super tax and corporation tax. It was
suggested that there should be no time limit for the
preferential payment of these crown debts and that
Section 230 of the Indian Companies Act should be
amended accordingly. The practical difficulty of giving
effect to the suggestion is that it would place a great
majority of the unsecured creditors of the company at
the mercy of the income tax authorities, inasmuch as,
whatever may be the nature of the security on which
they may have lent money to a company at the time of
the loan, the unforeseeable demands of the income
tax authorities on the company without any time limit
would rank over the claims of such creditors. In these
circumstances, it may be extremely difficult for the
company to raise capital for its working... We are
aware of the large arrears of income and other taxes
which are due by many companies, which are in
liquidation, but we would venture to think that the
remedy for this unsatisfactory situation is not the
conferment of preferential rights without limit to the
income tax authorities under Section 230 of the Indian
Companies Act, but the energetic completion of
assessment proceedings and vigorous measures for
the collection of the assessed taxes.
xx xx xx
13. Both benches of the High Court, with due respect,
gave to the provision a very wide and varied
interpretation and that too on literality and
grammaticals seemingly overlooking the legal
philosophy which permeates the provision, the same
Civil Appeal No. 2568 of 2013 Page 24 of 38
being that the debts due and payable, so as to claim
priority, must be appropriated to the period within 12
months next before the relevant date and their liability
for payment must be founded during that period and
no other. To put it in simpler words, the State has a
priority over debts, liability and obligation of which was
born within the time frame of those twelve months and
as such due and becoming due and payable within
those twelve months next before the relevant date,
ascertainable if necessary later, if not already
ascertained. We are in respectful agreement with the
interpretation put by the Court of Appeal to Section
264 of the English Companies Act in Airedale Garage
case, analogous as it is to the provision in hand,
warranting the same interpretation; more so when any
other interpretation would lead to the results feared by
the Company Law Committee extracted above. In
such view of the matter, we need not elaborately
comment, discuss or demolish, sentence by sentence,
the reasoning given by the Single Bench as also the
Division Bench of the High Court towards interpreting
the provision. The words ‘having become due and
payable within 12 months next before the relevant
date’ need be understood to mean putting a restriction
or cordoning off the amount for which priority is
claimable and not in respect of each and every debt
on account of taxes, rates and cesses etc. which may
be outstanding at that time and payable. And further
that such priority is in respect only of debts those of
which become due and payable because the liability to
those is rooted, founded and belonging to that period
of twelve months prior to the relevant date and none
other; both the conditions existing.”
19.D.A. Desai, J., in his judgment in Sales Tax Officer, Petlad
(supra) as a judge of Gujarat High Court, had examined the
question of when a debt becomes payable, for this is a
requirement to be satisfied, and only when the debt becomes ‘due
and payable’ during the twelve months next before the relevant
Civil Appeal No. 2568 of 2013 Page 25 of 38
date, does the debt get the character of a preferential debt. After
elaborate discussion, D.A. Desai, J. has held that the debt
becomes ‘due’ under the applicable taxing statute on the date
when the sale, that is, the taxing event takes place. Tax may
become ‘due’ but may be payable in future in terms of the statute.
In the context of the Sales Tax Act in question
27
, it was held that
the sales tax became ‘due and payable’ when the returns were
filed. Determination or quantification of the tax at the time of
passing of the assessment order in terms of the Sales Tax Act,
Sales Tax Officer, Petlad (supra) holds, was not relevant. We
need not refer to the Sales Tax Act relevant in Sales Tax Officer,
Petlad (supra) for the purpose of the present case. On the other
hand, we would have to refer to the provisions of the Customs Act
to ascertain the date on which the customs duty in respect of the
goods in question became ‘due and payable’. We are answering
this question, though not necessary, as the appellant – IDBI is an
overriding preferential creditor under Section 529A of the
Companies Act and at best, if the requirements of clause (a) to
Section 530(1) of the Companies Act are satisfied, the customs
dues would fall under Section 530 of the Companies Act and will
be categorized as preferential payment. To decide this question,
we shall also be examining the question of whether the Customs
27 Bombay Sales Tax Act, 1953 and Central Sales Tax Act, 1956.
Civil Appeal No. 2568 of 2013 Page 26 of 38
Act creates a first charge overriding the charge in favour of the
secured creditor, namely, the appellant – IDBI.
20.This Court in Dena Bank (supra), while examining the issue of
priority of government dues or Crown debts over the dues of other
creditors, opined that the Crown's preferential right to recovery of
debts over other creditors is confined to ordinary or unsecured
creditors. The common law principles of equity and good
conscience, as applicable in India and the common law of
England, do not accord the government or Crown dues a
preferential right for recovery of dues or debts over a mortgagee,
pledgee of goods or a secured creditor. The common law doctrine
giving preferential rights to the Crown debts confined to ordinary
or unsecured creditors constitutes ‘law in force’ within the meaning
of Article 372(1) of the Constitution of India, and accordingly, this
law continues to be in force. This Court in Dena Bank (supra)
specifically refers to and approves the statement of law made in
‘Rashbehary Ghose: Law of Mortgage’
28
– “It seems a government
debt in India is not entitled to precedence over a prior secured
debt.” This principle also emanates from the decision of the
Constitution bench of this Court in Builders Supply Corporation
v. Union of India and Others
29
, which was followed by a three
28 TLL, 7th Edn., p. 386.
29 (1965) 2 SCR 289.
Civil Appeal No. 2568 of 2013 Page 27 of 38
judges’ bench in Collector of Aurangabad and Another v.
Central Bank of India and Another
30
. At the same time, we must
record for clarity that this principle, which vents from the ‘law in
force’ within the meaning of Article 372(1) of the Constitution of
India, must give way to a statutory charge which may be created
by an enactment, whereby a first charge is given to government
dues or Crown debts, notwithstanding the charge of the secured
creditors.
21.Having considered the provisions of the Companies Act, and the
general principles of law, we would now proceed to examine
whether the Customs Act creates a first charge for payment of the
customs dues, and if so, harmonise and resolve the conflict
between the Companies Act and the Customs Act.
22.We would begin by quoting Section 15 of the Customs Act:
“15. Date for determination of rate of duty and tariff
valuation of imported goods.—(1) The rate of duty
and tariff valuation, if any, applicable to any imported
goods, shall be the rate and valuation in force,—
(a) in the case of goods entered for home
consumption under Section 46, on the date on which a
bill of entry in respect of such goods is presented
under that section;
(b) in the case of goods cleared from a warehouse
under Section 68, on the date on which a bill of entry
30 (1967) 3 SCR 855.
Civil Appeal No. 2568 of 2013 Page 28 of 38
for home consumption in respect of such goods is
presented under that section;
(c) in the case of any other goods, on the date of
payment of duty:
Provided that if a bill of entry has been presented
before the date of entry inwards of the vessel or the
arrival of the aircraft or the vehicle by which the goods
are imported, the bill of entry shall be deemed to have
been presented on the date of such entry inwards or
the arrival, as the case may be.
(2) The provisions of this section shall not apply to
baggage and goods imported by post.”
In the present case, upon import of the goods, the Company
had entered the goods for home consumption under Section 46 of
the Customs Act, which reads as under:
“46. Entry of goods on importation.— (1) The
importer of any goods, other than goods intended for
transit or transhipment, shall make entry thereof by
presenting electronically on the customs automated
system to the proper officer a bill of entry for home
consumption or warehousing in such form and manner
as may be prescribed:
Provided that the Principal Commissioner of Customs
or Commissioner of Customs may, in cases where it is
not feasible to make entry by presenting electronically
on the customs automated system, allow an entry to
be presented in any other manner:
Provided further that if the importer makes and
subscribes to a declaration before the proper officer, to
the effect that he is unable for want of full information
to furnish all the particulars of the goods required
under this sub-section, the proper officer may, pending
the production of such information, permit him,
previous to the entry thereof : (a) to examine the
goods in the presence of an officer of customs, or (b)
Civil Appeal No. 2568 of 2013 Page 29 of 38
to deposit the goods in a public warehouse appointed
under Section 57 without warehousing the same.
(2) Save as otherwise permitted by the proper officer,
a bill of entry shall include all the goods mentioned in
the bill of lading or other receipt given by the carrier to
the consignor.
(3) The importer shall present the bill of entry under
sub-section (1) before the end of the day (including
holidays) preceding the day on which the aircraft or
vessel or vehicle carrying the goods arrives at a
customs station at which such goods are to be cleared
for home consumption or warehousing:
Provided that the Board may, in such cases as it may
deem fit, prescribe different time limits for presentation
of the bill of entry, which shall not be later than the end
of the day of such arrival:
Provided further that] a bill of entry may be presented
at any time not exceeding thirty days prior to the
expected arrival of the aircraft or vessel or vehicle by
which the goods have been shipped for importation
into India:
Provided also that where the bill of entry is not
presented within the time so specified and the proper
officer is satisfied that there was no sufficient cause for
such delay, the importer shall pay such charges for
late presentation of the bill of entry as may be
prescribed.
(4) The importer while presenting a bill of entry shall
make and subscribe to a declaration as to the truth of
the contents of such bill of entry and shall, in support
of such declaration, produce to the proper officer the
invoice, if any, and such other documents relating to
the imported goods as may be prescribed.
(4-A) The importer who presents a bill of entry shall
ensure the following, namely—
(a) the accuracy and completeness of the information
given therein;
Civil Appeal No. 2568 of 2013 Page 30 of 38
(b) the authenticity and validity of any document
supporting it; and
(c) compliance with the restriction or prohibition, if any,
relating to the goods under this Act or under any other
law for the time being in force.
(5) If the proper officer is satisfied that the interests of
revenue are not prejudicially affected and that there
was no fraudulent intention, he may permit substitution
of a bill of entry for home consumption for a bill of
entry for warehousing or vice versa.”
However, the goods were stored in a private bonded
warehouse, in the terms of Section 68 of the Customs Act, which
reads as follows:
“68. Clearance of warehoused goods for home
consumption.—Any warehoused goods may be
cleared from the warehouse for home consumption, if
—
(a) a bill of entry for home consumption in respect of
such goods has been presented in the prescribed
form;
(b) the import duty, interest, fine and penalties payable
in respect of such goods have been paid; and
(c) an order for clearance of such goods for home
consumption has been made by the proper officer:
Provided that the order referred to in clause (c) may
also be made electronically through the customs
automated system on the basis of risk evaluation
through appropriate selection criteria:
Provided further that the owner of any warehoused
goods may, at any time before an order for clearance
of goods for home consumption has been made in
respect of such goods, relinquish his title to the goods
Civil Appeal No. 2568 of 2013 Page 31 of 38
upon payment of penalties that may be payable in
respect of the goods and upon such relinquishment,
he shall not be liable to pay duty thereon:
Provided also that the owner of any such warehoused
goods shall not be allowed to relinquish his title to
such goods regarding which an offence appears to
have been committed under this Act or any other law
for the time being in force.”
The goods were not released on non-payment of customs duty
etc. and, thereupon, show cause notices dated 17
th
February 2000
and 10
th
April 2000 were issued and two adjudication orders dated
15
th
September 2000 and 10
th
October 2000 were passed.
23.In a similar factual matrix, a three judges’ bench of this Court in
Commissioner of Customs, Calcutta and Another v. Biecco
Lawrie Ltd.
31
had examined the provisions of Section 15 of the
Customs Act, as they then existed, and have opined that clause
(b) to Section 15(1) of the Customs Act will cease to apply when
the requirements under Section 68 of the Customs Act stand
fulfilled and the imported goods are cleared for home
consumption. In the context of the present case, we must hold that
the debt had become ‘due’ in terms of the two adjudication orders
dated 15
th
September 2000 and 10
th
October 2000 and ‘payable’
immediately. Thus, the customs duty became ‘due and payable’
prior to twelve months next to the ‘relevant date’; the ‘relevant
31 (2008) 3 SCC 264.
Civil Appeal No. 2568 of 2013 Page 32 of 38
date' being the date of winding up of the Company on 1
st
December 2003. The amount ‘due and payable’ in terms of the
two adjudication orders dated 15
th
September 2000 and 10
th
October 2000 would, therefore, not fall in the category of
preferential payments under clause (a) to Section 530(1) of the
Companies Act.
24.We have also examined Sections 61, 72 and 142 of the Customs
Act
32
to consider the question of whether the Customs Act confers
and creates statutory first charge on the customs dues, and are of
the opinion that the sections do not incorporate a statutory first
charge to override the general law, as per the dictum in Dena
Bank (supra). The provisions of the land revenue enactment
applicable in the present case have not been relied upon by the
respondents, in which event, a legal issue relating to conflict of
laws would have arisen and required an answer. The provisions in
the Customs Act do not, in any manner, negate or override the
statutory preference in terms of Section 529A of the Companies
Act, which treats the secured creditors and the workmen’s dues
33
as overriding preferential creditors; and the government dues
limited to debts ‘due and payable’ in the twelve months next
before the relevant date, which are to be treated as preferential
32 These provisions, though relevant, are not being reproduced for the sake of brevity.
33 As defined and payable in terms of Section 529(3)(b) of the Companies Act.
Civil Appeal No. 2568 of 2013 Page 33 of 38
payments under Section 530 of the Companies Act, but are
ranked below overriding preferential payments and have to be
paid after the payment has been made in terms of Section 529
and 529A of the Companies Act. Therefore, the prior secured
creditors are entitled to enforce their charge, notwithstanding the
government dues payable under the Customs Act.
25.The view and the ratio we have expressed is in consonance with
the decision of this Court in Punjab National Bank v. Union of
India and Others
34
. A similar view has also been expressed by a
three judges’ bench of this Court in Sundaresh Bhatt, Liquidator
of ABG Shipyard v. Central Board of Indirect Taxes and
Customs
35
, with references to the provisions of the Insolvency
and Bankruptcy Code, 2016
36
and the Customs Act. In this
context, the three judges’ bench in Sundaresh Bhatt, Liquidator
of ABG Shipyard (supra) has referred to Section 238 of the IBC
to observe that Section 238 of the IBC clearly overrides any
provision of law which is inconsistent with the IBC. This judgment
has also made reference to Section 142A of the Customs Act,
which reads thus:
“142A. Liability under Act to be first charge.—
Notwithstanding anything to the contrary contained in
any Central Act or State Act, any amount of duty,
34 (2022) 7 SCC 260.
35 (2023) 1 SCC 472.
36 For short, ‘IBC’.
Civil Appeal No. 2568 of 2013 Page 34 of 38
penalty, interest or any other sum payable by an
assessee or any other person under this Act, shall,
save as otherwise provided in Section 529-A of the
Companies Act, 1956 (1 of 1956), the Recovery of
Debts Due to Banks and the Financial Institutions Act,
1993 (51 of 1993), the Securitisation and
Reconstruction of Financial Assets and the
Enforcement of Security Interest Act, 2002 and the
Insolvency and Bankruptcy Code, 2016 be the first
charge on the property of the assessee or the person,
as the case may be.”
Section 142A of the Customs Act was inserted by Act 8 of 2011
with effect from 8
th
April 2011. It does not apply to the present
litigation. Section 142A of the Customs Act protects and ensures
that the dues under the Customs Act do not, in any way, affect the
rights of third parties under Section 529A of the Companies Act or
rights of the parties as per provisions of the Recovery of Debts
Due to Banks and the Financial Institutions Act, 1993
37
, the
Securitisation and Reconstruction of Financial Assets and the
Enforcement of Security Interest Act, 2002
38
and the IBC. Read in
this manner, it is clear to us that the provision of Section 142A of
the Customs Act, insofar as it protects the rights of overriding
preferential creditors governed and covered by Section 529A of
the Companies Act, is clarificatory and declaratory in nature, and
does not lay down a new dictum or confer any new right as far as
the present case is concerned. However, the enactment of section
142A of the Customs Act does confer or create a first charge on
37 For short, ‘RDDBFI Act’.
38 For short, SARFAESI Act’.
Civil Appeal No. 2568 of 2013 Page 35 of 38
the dues ‘payable’ under the Customs Act, notwithstanding
provisions under any Central Act, but not in cases covered under
Section 529A of the Companies Act, RDDBFI Act, SARFAESI Act
and the IBC. Section 142A of the Customs Act, post its enactment,
would dilute the impact of Section 530 of the Companies Act,
which had restricted preferential treatment to government taxes
‘due and payable’ limited to twelve months prior to the ‘relevant
date’, without preferential right for taxes that had become ‘due and
payable’ in the earlier period.
26.In view of our reasoning, we must hold that the decision of the
division bench of the Calcutta High Court in Dytron (India) Ltd.
(supra) does not lay down the correct law and is, accordingly,
overruled. The decision in Dytron (India) Ltd. (supra) was
referred to in Sundaresh Bhatt, Liquidator of ABG Shipyard
(supra), wherein this Court observed that reliance of the National
Company Law Appellate Tribunal on Dytron (India) Ltd. (supra)
was not appropriate as such interpretation has been legislatively
overruled by the inclusion of Section 142A in the Customs Act. We
wish to clarify, as held above, that the decision in Dytron (India)
Ltd. (supra) does not lay down the correct law, as even earlier, the
position in law was that the debt ‘due and payable’, when it falls
within the four corners of clause (a) to Section 530(1) of the
Civil Appeal No. 2568 of 2013 Page 36 of 38
Companies Act, would be treated as preferential payment, but it
would not override and be given preference over the payments of
overriding preferential creditors covered under Section 529A of the
Companies Act.
27.We must also examine the decision of this Court in Imperial Chit
Funds (P) Ltd. v. Income Tax Officer, Ernakulam
39
, wherein this
Court has interpreted the legal effect of Section 178 of the Income
Tax Act, 1961
40
, which was enacted pursuant to the report of the
Company Law Reforms Committee. On interpretation of Section
178 of the Income Tax Act, it was held that the provision is made
applicable for any tax which is ‘then or is likely to become
payable’, and specifically relates to cases where the company is in
liquidation. Consequently, the amount specified and covered by
Section 178 of the Income Tax Act is protected in view of the non-
obstante clause in sub-section (6) to Section 178 and this amount
has to be set aside. In terms of Section 178 of the Income Tax Act,
the amount set aside will not form a part of the pool of dues to be
distributed among ordinary or unsecured creditors or, for that
matter, as indicated over the overriding or preferential creditors
under Sections 529A and 530 of the Companies Act.
39 (1996) 8 SCC 303.
40 For short, ‘Income Tax Act’.
Civil Appeal No. 2568 of 2013 Page 37 of 38
28.In view of the aforesaid discussion and for the reasons stated, the
present appeal is allowed and the impugned judgment dated 26
th
August 2008 in Original Side Appeal No. 1 of 2005 is set aside.
Company Application No. 906 of 2004 filed by the Official
Liquidator in Company Petition No. 168 of 2002 will be treated as
allowed. The sale proceeds deposited in this Court and converted
into fixed deposit receipts, along with the interest accrued thereon,
will be paid to the Official Liquidator to be distributed in
accordance with the provisions of Sections 529A and 530 of the
Companies Act. There would be no order as to costs.
......................................J.
(SANJIV KHANNA)
......................................J.
(SUDHANSHU DHULIA)
NEW DELHI;
AUGUST 18, 2023.
Civil Appeal No. 2568 of 2013 Page 38 of 38
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