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Judgment
Rajiv Sahai Endlaw, J.—The appeal impugns the order dated 15th March, 2012 of the learned Company Judge in Company Application No. 906/2008 in Company Petition No. 159/1994 pertaining to winding up of M/s Tara Cements Pvt. Ltd. The said M/s Tara Cements Pvt. Ltd. since ordered to be wound up and hereinafter called the company in liquidation had availed finance from the appellant on the security of its immovable and movable properties. Upon the failure of the company in liquidation to make payments, the appellant in exercise of powers u/s 29 of the State Financial Corporations Act, 1951 repossessed the immovable property of the company in liquidation at Village Tajpur, Tehsil Narnaul, District Mahendragarh and put the same to auction. The bid of one Shri Mukesh Kumar Sanghi at Rs. 18 lacs was accepted on 26th November, 2001 and an Agreement to Sell dated 23rd January, 2002 was executed by the appellant in favour of the said auction purchaser. Out of the total bid amount of Rs. 18 lacs, Rs. 4.50 lacs stood paid to the appellant till then and the balance was payable in 12 instalments alongwith interest on the total outstanding amount.
The learned Company Judge thereafter vide order dated 28th February, 2003 in the winding up proceedings appointed a Provisional Liquidator. The said Provisional Liquidator sealed the aforesaid property on 16th April, 2003. The appellant as well as the auction purchaser filed applications for de-sealing of the property.
The learned Company Judge vide order dated 13th August, 2004 approved the sale in favour of the auction purchaser but directed the balance sale consideration then payable by the auction purchaser to be deposited with the Official Liquidator.
The auction purchaser, after deposit of the entire balance consideration with the Official Liquidator, filed Company Application No. 906/2008 supra for a direction for execution of the sale deed in its favour.
The learned Single Judge vide impugned order has directed the appellant to execute the sale deed and deliver title documents of the property in favour of the auction purchaser with liberty to the appellant to file its claim with the Official Liquidator for the amount claimed to be due to it.
The appellant challenges the aforesaid order contending that it cannot be directed to execute the sale deed without release of the balance sale consideration deposited with the Official Liquidator in its favour. It is pleaded that the appellant is a secured creditor and a first charge holder and is entitled to the entire sale consideration.
Notice of the appeal was issued to the Official Liquidator as well as to the State Bank of Travancore which was also reported to have a claim over the subject property. None appeared on behalf of the said Bank inspite of service on 30th July, 2012 or on any date thereafter. None has appeared for the Bank today also. The counsel for the Official Liquidator has filed a Status Report disclosing the claim against the company in liquidation of the Bank only. The counsel for the appellant has shown documents to demonstrate that the charge of the Bank on the subject property is subservient to the charge of the appellant. We have no reason to doubt the said statement particularly when the Bank has chosen not to appear.
There being no preferential creditors of the company in liquidation, the appellant is found entitled to the release of the balance sale consideration of the subject property lying deposited in this Court/with the Official Liquidator together with interest accrued thereon. The Official Liquidator is accordingly directed to within one week hereof release the aforesaid amount in favour of the appellant.
We may record that though the counsel for the Official Liquidator has stated that the expenses if any incurred be allowed to be deducted from the aforesaid amount but has been unable to give any particulars of the said expenses. The auction having been conducted by the appellant itself, the question of the Official Liquidator incurring any expenses on that behalf does not arise. The appeal is thus disposed of in aforesaid terms. We had earlier vide order dated 3rd August, 2012 already directed the appellant to execute the sale deed in favour of the auction purchaser.
No order as to costs.