Research › Browse › Judgment

Kerala High Court · body

1993 DIGILAW 395 (KER)

Kerala Financial Corporation v. Official Liquidator

1993-08-18

G.RAJASEKHARAN

body1993
ORDER 1. An application by the Kerala Financial Corporation, a secured creditor in the matter of M/s. Southern Organics (P) Limited in liquidation. 2. The applicant preferred its claim before the Liquidator for a sum of Rs. 47,02,769.40. That included interest after the winding up to the tune of Rs. 8,65,549.60 and Rs. 873.96, the amount of T.A. and D.A. paid to the nominee Directors. The Liquidator rejected the claim of interest after the winding up and also the claim relating to T.A. and D.A. The claim of interest at the contract rate up to the date of winding up was allowed by the Liquidator in adjudicating the matter. 3. In this application, the applicant contends that it is entitled to interest after the winding up also to be calculated at the rate of 4 per cent per annum under R.156 of the Companies (Court) Rules, 1959. 4. R.156 of the Companies (Court) Rules, 1959 deals with cases where there is no contract regarding payment of interest. That rule has no application at all and that rule does not enable a secured creditor to get interest after the date of winding up. 5. According to the learned counsel for the applicant since the 'insolvency provisions are made applicable, under S.47 of the Provincial Insolvency Act, the applicant being a secured creditor is entitled to prove the entire debt which according to him includes interest after the adjudication also. This argument is totally unacceptable. S.47 does not enable a secured creditor to claim interest after the date of adjudication unless it falls under S.61(6) of the Provincial Insolvency Act which enables payment of interest from the date when the debtor is adjudged an insolvent in case there is surplus after distribution. 6. R.179 of the Companies (Court) Rules, 1959 also makes matters clear regarding payment of interest after the winding up. Question of payment of interest after the winding up comes only if there is surplus after payment in full of: the claims admitted to proof. 7. The learned counsel for the applicant in support of his argument has placed reliance on the decision in K. V. Lakshminarayana Sastry v. Vijaya Commercial Bank Ltd. (in liquidation) 1963 Company Cases Vol. 33, page 49. That was a case where the secured creditor was standing outside the winding up and that has no bearing with the facts of the present case. 33, page 49. That was a case where the secured creditor was standing outside the winding up and that has no bearing with the facts of the present case. The applicant is not standing outside the winding up and it is doubtful whether it can stand outside the winding up and walk away with the security after the amendment of 1985 adding the proviso to S.529 and the enactment of S.529A by which the claims of workers are treated in parity with the claims of the secured creditors. 8. Another decision relied on by the learned counsel for the liquidator is State Bank of Mysore v. Official Liquidator and others 1985 Company Cases Vol. 58, page 609. That decision also is not applicable to the present case. That was also a case of a secured creditor standing outside the winding up. But, he permitted the security to be sold by the Liquidator on condition that the price shall be the substituted security for his claim. 9. The question of payment of interest in the case of winding up proceedings came up before a Division Bench of this Court in Bombay Cotton Ltd. v. Ramachandra Iyer 1963 KLT 638. There, the effect of the provisions of the Provincial Insolvency Act also was considered and the court held that interest is payable up to the date of presentation of the petition in an insolvency case and up to the date of presentation of winding up petition in the case of an insolvency company. ' 10. It was urged that the said case related to an unsecured creditor and so the dictum therein cannot be applied to the present case. Whether it be an unsecured creditor or a secured creditor, the insolvency proceedings do not permit of interest after the date of adjudication of insolvency. The. applicant, as one of the secured creditors, along with the workers of the Company, is entitled to get the claim admitted regarding interest only up to the date of winding up and the payment of interest after that date will be governed by R.179 of the Companies (Court) Rules or S.61(6) of the Provincial Insolvency Act. In both cases, the payment of interest after the date of winding up will arise only where there is surplus. The adjudication made by the Liquidator does not call for any interference. The application is devoid of merit and is dismissed.