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In Re: Imperial Bank of India - Court Judgment

LegalCrystal Citation
SubjectCompany
CourtChennai
Decided On
Reported inAIR1925Mad271
AppellantIn Re: Imperial Bank of India
Excerpt:
- - it appears from exhibit a that it was filed with the registrar of joint stock companies and registered on the 2lst december, 1921, so that the provisions of section 109, clause (e) of the companies act have been satisfied......will be added rs. 21, costs allowed to abdur bahiman on his application as regards rent. as regards schedule b, there is also no dispute, as items referred to therein, are sums payable in connection with income-tax and to the postmaster-general for customs duty. schedule c refers to cartain claims made by the imperial bank of madras and to certain sums due to the overseas export and import co., and the hongkong and shanghai banking corporation. items 1 and 2 of schedule c refer to the imperial bank of madras. the imperial bank obtained a floating charge on the properties of the morrison & co., ltd., by deed, dated the 12th december, 1921. this deed has been marked a, in the liquidation proceedings. it appears from exhibit a that it was filed with the registrar of joint stock.....
Judgment:
ORDER

Kumaraswami Sastri, J.

1. This is an application by the liquidator for direction as to various matters set out in the Judge's summons. The first question is as regards the charges set out in Schedule A to the liquidator's affidavit; Schedule A is a list of preferential charges which, under the Act, have to be paid first and there is no dispute about Schedule A. The amounts in Schedule A will be paid first by the liquidator and to the sums mentioned therein will be added Rs. 21, costs allowed to Abdur Bahiman on his application as regards rent. As regards Schedule B, there is also no dispute, as items referred to therein, are sums payable in connection with income-tax and to the Postmaster-General for Customs duty. Schedule C refers to cartain claims made by the Imperial Bank of Madras and to certain sums due to the Overseas Export and Import Co., and the Hongkong and Shanghai Banking Corporation. Items 1 and 2 of Schedule C refer to the Imperial Bank of Madras. The Imperial Bank obtained a floating charge on the properties of the Morrison & Co., Ltd., by deed, dated the 12th December, 1921. This deed has been marked A, in the liquidation proceedings. It appears from Exhibit A that it was filed with the Registrar of Joint Stock Companies and registered on the 2lst December, : 1921, so that the provisions of Section 109, 'Clause (e) of the Companies Act have been satisfied. It is clear from Sections 230 and 233 of the Companies Act that the Imperial Bank can have a charge over the assets of the company. I do not think that Section 52 of the Insolvency act has any application to cases of floating charges, creatad by a company, in favour of the Bank. Section 229 'refers to the Insolvency Act, only as regards the rights of secured and unsecured creditors. It is obvious that a floating charge, if created, must leave the possession with the company, as otherwise it cannot carry on business at all. The Imperial Bank will be paid the amounts of items 1 and 2 of Schedule C to the affidavit of the liquidator first. Item 3 of Schedule C refers to the Overseas Export and Import Co., and the question is whether the goods were sold to Morrison and Co., Ltd., or whether Morrison and Co., were only the agents for the Overseas Export and Import Co. The Company does not appear and prove its claim to priority. It appears from the agreement that they were to deal inter se as principal and agent and that drafts were drawn against the goods; and I therefore do not think it is proved that the Oversea a Export and Import Co. have any priority. As regards item 4, which relates to Hongkong and Shanghai Banking Corporation, it appears from the letters written by Morrison and Co., Ltd., to the Imperial Bank, which represented the Hongkong and Shanghai Banking Corporation, that Morrison and Co., Ltd.,' were only agents for sale, that goods were to be sold and that the sale-proceeds were to be paid over in due course, that the unsold goods wore to be returned and that the property was to be at the 'disposal of Hongkong and Shanghai Banking Corporation. In these circumstances, I think that Hongkong and Shanghai Bunking Corporation has got a priority, in respect of Rs. 3,500 and Bg. 2,309-8-0, items 4 and 5. As regards the other schedules, I accept the statements referred to in the affidavit of the liquidator. Mr. M.C. Alasingarachariar, who is one of the persons mentioned in Schedule F and who. claims Rs. 739, states that this sum is due for professional services rendered by him and that he has filed an affidavit proving the amount due. The difficulty however, in his case is that they were services rendered to Morrison & Co., Ltd., before it was turned into a limited liability company and there is nothing to show that Morrison and Co., Ltd., undertook to pay the debts of Morrison and Co. On the contrary the proceedings of the Directors, which are referred to, by Mr. Mockett show that the debts were not payable by the company. As however it is clear that excepting the Imperial Bank and the Hangkong and Shanghai Banking Corporation, who have got priority, there would not be assets to pay other creditors, it seems to me that he has not much hardship in the matter. The next question is as regards the remuneration of the liquidator.

2. The liquidation proceedings have been going on, for the last two years and I think that Rs. 200 a month, would be fair remuneration for the trouble taken by the liquidator, during the period of liquidation. I allow him Rs. 200. a month, from the date he assumed charge up this date. I direct that Schedules A and B and the liquidator's remuneration and the costs of this application will be paid first and out of the balance, the Imperial Bank and the Hongkong and Shanghai Banking Corporation will be paid rateably.

3. The taxed costs of the liquidator, as between attorney and client, and of the Imperial Bank, will be paid out of the funds in the liquidator's hands. I certify for counsel.


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