Anna Venkata Subbaiah v. Official Receiver, Kurnool
2004-10-04
D.S.R.VERMA
body2004
DigiLaw.ai
D. S. R. VARMA, J. ( 1 ) HEARD both sides. Perused the impugned order as well as other material papers on record. ( 2 ) THIS civil revision petition is filed under Article 227 of the Constitution of india, being aggrieved by the order, dated 11. 12. 2003, in C. M. A. No. l of 2003, on the file of the Principal Senior Civil Judge, kumool. ( 3 ) BY the impugned order, the Court below dismissed the appeal in C. M. A. No. l of 2003 preferred by the appellant/discharged insolvent under Section 68 of the Provincial insolvency Act challenging the order of the official Receiver, Kurnool, dated 27. 3. 2003, whereunder the Official Receiver rejected the claim of the appellant for withdrawal of the amount in terms of the decree passed by this Court in S. A. Nos. 528 and 529 of 1995, dated 27. 12. 2002. ( 4 ) THE facts of the case, in brief, are that during the pendency of the application made by the petitioner under the Provincial insolvency Act seeking declaration that he was an insolvent, the property was kept under the custody of the Official Receiver. Subsequently, the petitioner was declared as an insolvent, and, consequently, the property kept under the custody of the Official receiver was put to auction and a total sum of Rs. 1,84,550/- was realized by the official Receiver after subjecting the property of the petitioner to sale. It appears that some other litigation arose and eventually, the Second Appeal Nos. 528 and 529 of 1995 have been filed wherein a compromise was entered into between the petitioner and the. creditors to the effect that the amount lying in the credit of the Insolvency Petition would be taken back and the same would be paid to the creditors and also permitted the petitioner to take back the amount from the Official Receiver. Accordingly, in view of the compromise memo, the petitioner filed a petition before the Official Receiver seeking return of the amount in terms of the order and decree passed by this Court in s. A. Nos. 528 and 529 of 1995, dated 27. 12. 2002. Thereupon, the Official Receiver passed an order to the effect that the petitioner is entitled for return of rs. 11,77,836/- and filed a statement, which runs as under:"the following deductions are made: total amount realized in this I. P Rs.
528 and 529 of 1995, dated 27. 12. 2002. Thereupon, the Official Receiver passed an order to the effect that the petitioner is entitled for return of rs. 11,77,836/- and filed a statement, which runs as under:"the following deductions are made: total amount realized in this I. P Rs. 12,91,779/- expenditure incurred audit fee at the rate of 0. 75% on realized amount rs. 2,000/- rs. 9,673/- rs. 11,673/- o. R. s Commission on the bid amount rs. 1,84,550/- dated 27. 10. 1980 at Rs. 5,537/- the rate of 3% cost of establishment at the rate of 714% on realized amount Rs. 96,733/- rs. 1,13,943/- ( 5 ) FROM the above statement of the official Receiver, it could be seen that the gross amount realized after the sale of the property of the petitioner on 27. 10. 1980 was rs. 1,84,550/ -. In all these years, some amount had been added by way of interest to the amount actually realized and now it has become Rs. 12,91,7797/ -. ( 6 ) THE Official Receiver estimated his commission at the rate of 3% on Rs. 1,84,550/- i. e. , on the amount actually realized as rs. 5,537/- and the cost of establishment charges at the rate of 71/2 % on the amount realized was estimated as Rs. 96,733/ -. ( 7 ) IN the present revision petition, the petitioner challenges the deduction of the said sum of Rs. 96,733/- towards cost of establishment, from the total amount of rs. 12,91,779/-, as inadmissible. ( 8 ) SRI K. Soma Konda Reddy, learned counsel appearing on behalf of the petitioner, contends that the Official Receiver is entitled to deduct various amounts mentioned in the above statement except the deduction towards establishment charges at the rate of 71/2 % on the realized amount. It is his further contention that the expression realized amount should be understood as the actual amount realized at the time of sale of the property of the petitioner but not the realized amount together with the accrued interest thereon. ( 9 ) THIS Court sought the assistance of the learned Counsel, Sri V. S. Raju, and also directed the Official Receiver to assist the Court by producing the relevant g. Os. and to explain how the said amount of Rs. 96,733/- deducted towards the cost of establishment is permissible under law.
( 9 ) THIS Court sought the assistance of the learned Counsel, Sri V. S. Raju, and also directed the Official Receiver to assist the Court by producing the relevant g. Os. and to explain how the said amount of Rs. 96,733/- deducted towards the cost of establishment is permissible under law. ( 10 ) THE lower Appellate Court held that the Official Receiver has been administering the estate of the debtor, who is now discharged insolvent, and therefore, he is entitled to make certain deductions in the realized amount towards the expenditure incurred during the maintenance of the estate of the debtor/petitioner. It has further observed that it cannot be concluded that the Office of the Official Receiver is not entitled to deduct those compulsory deductions from the gross realization and further it entertained a doubt as to who will pay the amount already spent for maintaining the estate of the petitioner by the Office of the Official Receiver, if the petitioner is allowed to take the entire gross realized amount. With the above observations, eventually the lower Appellate Court held that the petitioner ought to have approached this Court seeking necessary clarifications in the absence of any specific orders regarding deductions. ( 11 ) NOW, the question that arises for consideration is Whether the Official receiver is entitled/obligated to deduct the sum of Rs. 96,733/- towards establishment charges at the rate of 7 1/2 % on the realized amount. ( 12 ) IN this connection, it has been brought to the notice of this Court that there are certain Circulars issued under the provincial Insolvency Act. In the said circulars, which were issued from time to time, all the powers of the Official Receiver were carved out under the heading - (G) funds, which runs as follows:" (I) A commission of 5 per cent will be levied on the gross realizations and will be credited to the Government under "xxi. Administration of Justice. " An audit fee of 12 Annas per cent calculated on the gross realizations will be credited to the government under "xlvi. Miscellaneous -C. Fees for Government audit.
Administration of Justice. " An audit fee of 12 Annas per cent calculated on the gross realizations will be credited to the government under "xlvi. Miscellaneous -C. Fees for Government audit. (G)-iii of the said Circular Orders runs as under: "it has been brought to the notice of government that a difference of opinion exists as to the interpretation of the expression "gross realization", occurring in Paragraph 1 (i) of G. O. No. 5270, Home, dated 3rd October, 1939, for purposes of levy of audit fees. The government wish to make it clear that what was meant by the expression "gross, realizations" was the amount left after deducting administrative expenses from the gross amount actually collected and that the basis of the commission and audit fee should be the amount realized less the actual expenses of realization. (Home Department circular Memorandum No. 21361-F/44-I, dated 28th July, 1944 ). (R. O. C. No. 2777-D-3 of 1944 ). ". . . emphasis supplied. ( 13 ) FROM a reading of the above, it is crystal clear that the expression gross realization was clarified by the Government itself as deducting the administrative expenses from the "gross amount actually collected". Here, it is significanitto note that the expression "actually collected" gains much importance. ( 14 ) IN this connection, and as seen from the statement of the Official Receiver, it is to be noted that the actual amount collected after the sale of the property of the petitioner was Rs. 1,84,550/ -. ( 15 ) IN the instant case, it is not in dispute that the actual amount received after selling the property is Rs. 1,84,550/- and the same gained some interest for a period of more than two decades and ultimately, the amount was accumulated to Rs. 12,91,779/- this entire amount of Rs. 12,91,779/- shall not be understood -as the gross amount realized for the purpose of deducting the establishment charges by the Official receiver. The said amount, which was credited to the credit of the petitioner, was lying in the bank for a period of more than two decades and the said amount together with the interest accrued thereon yielded Rs. 12,91,779/ -. The bulging of Rs. 1,84,5507- to Rs. 12,91,779/- is not because of the maintenance or the functioning of the Official Receiver.
The said amount, which was credited to the credit of the petitioner, was lying in the bank for a period of more than two decades and the said amount together with the interest accrued thereon yielded Rs. 12,91,779/ -. The bulging of Rs. 1,84,5507- to Rs. 12,91,779/- is not because of the maintenance or the functioning of the Official Receiver. The role of the Official Receiver in getting the gross realized amount enlarged to higher amount is only decimal. The Official receiver has only done the initial act of depositing the bid amount in the bank, which has been enlarged to a larger amount. ( 16 ) FURTHER, from the above Circulars issued under the Provincial Insolvency Act, the relevant portion of which are extracted above, it is clarified that the gross realization means "gross amount actually collected" by the Official Receiver by the sale of property of the petitioner only. Therefore, the sum of Rs. 96,733/- deducted towards establishment charges at the rate of T1/2 % on Rs. 12,91,779/- on the ground that the said sum is the gross realized amount cannot be sustained. . . . . . emphasis supplied ( 17 ) IN other words, the realized amount means "the amount actually realized", i. e. , rs. 1,84,550/-, in the year 1980 at the time of auction of the property of the petitioner and the deductions made towards establishment charges are permitted at the rate of 71/2 % only on the said sum but not on the enlarged sum, which is a mere consequence due to the deposit in the bank. ( 18 ) THEREFORE, for the foregoing reasons, the order of the lower Appellate court is liable to be set aside to the extent that the Official Receiver is entitled to recover rs. 96,733/- towards establishment charges at the rate of 7/2% on Rs. 12,91,779/ -. ( 19 ) THE Official Receiver is accordingly directed to calculate the establishment charges afresh insofar as the deductions are concerned, taking into account the actual amount realized at the time of sale of the property of the petitioner i. e. , on rs. 1,84,550/- and return the balance amount to the petitioner. ( 20 ) WITH the above directions, this civil revision petition is allowed to the extent indicated above. No order as to costs.