Section 326: Overriding preferential payments

Companies Act • Official Statutory Text & Practice Guide

Statutory Regulation
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Act 2013
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Legal Commentary & Landmark Judgments: Section 326

Section 326 of the Companies Act, 2013 confers overriding preferential status upon workmen's dues and debts owed to secured creditors ranking pari passu with workmen, mandating super-priority payment of workmen's wages within thirty days of asset realization.

  • Pari Passu Statutory Charge: Creates an overriding legal charge whereby workmen's statutory dues rank equally with debts due to secured creditors to the extent of the workmen's portion in the secured assets.
  • Definition and Scope of Workmen's Dues: Encompasses all wages, salaries, accrued holiday remuneration, compensation under Industrial Disputes Act, 1947, and provident, pension, or gratuity fund dues payable to workmen for twenty-four months preceding the winding up order.
  • Thirty-Day Super-Priority Mandate: The proviso mandates that workmen's wages and salaries for a period of one to three months within twenty-four months preceding the winding up order must be disbursed within thirty days from the sale of assets, taking absolute priority over all other debts.
Key Landmark Precedents:
  • Workers of M/s Rohtas Industries Ltd. v. M/s Rohtas Industries Ltd., AIR 1990 SC 481: The Supreme Court held that wages and subsistence claims of workers constitute an absolute paramount charge on the company's assets, ranking prior even to secured debenture holders and tax liabilities.
  • UCO Bank v. Official Liquidator, High Court of Bombay, (1994) 5 SCC 1: The Supreme Court held that secured creditors' rights are statutorily curtailed by the pari passu charge created in favor of workmen's dues, preventing secured creditors from appropriating the entire realization of secured assets.
  • ICICI Bank Ltd. v. SIDCO Leathers Ltd., (2006) 10 SCC 452: Held that while workmen's dues rank pari passu with secured creditors under overriding preferential provisions, the inter-se priority between first and second charge holders among secured creditors remains preserved.
Courtroom Practice & Strategic Litigation Guidance:

When representing trade unions or official liquidators, file an application under Section 326 supported by audited labor rolls establishing wage arrears within the 24-month statutory lookback. Resist attempts by secured asset reconstruction companies to repatriate auction proceeds until the 30-day super-priority allocation for workmen is deposited into a dedicated escrow account.