THIRUNAGESWARAM JANOPAKARA SASWATHA NIDHI LTD Vs. P K DORAISWAMI MUDALIAR
HIGH COURT OF MADRAS
THIRUNAGESWARAM JANOPAKARA SASWATHA NIDHI LTD.,
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(1.) THE amount due from the fund became payable long ago as all the instalments have been paid by the mortgagor. If, as pointed out in -' mylapore Permanent Benefit Fund Ltd. v. Arogiaswami Pillai', AIR 1918 Mad 995 (A), after the calls have matured at the end of the 84th month, the balance becomes due and there is a statement of account, there is nothing to prevent the adjustment of the two claims at the end of the 84th month. In that case what happened was that the period of maturity had not arrived and therefore the adjustment could not be availed of. In view of Section 229, Companies Act, which attracts the provision in Section 46, Provincial Insolvency Act, the mortgagor has got the right to claim a set-off of the amount due to him from the fund in respect of the matured claim as against the amount due from him under the mortgage. This is not like a case of a contributory in a limited company who, as a creditor of the company, cannot, in winding up, set off his debt against a call made on him by the liquidator, until the creditors have been paid in full. There is no question of the mortgagor being a contributory. The amount due to him became payable under a contract with the fund by which he had to keep up the payment of the instalments for a period of 34 months at the end of which the fund in its turn promised to pay to the person who entered into the contract not only the amount he paid but also some bonus and this amount" undoubtedly became payable at the end of the 84th month. That amount is a debt due to the mortgagor from the fund. The fund is now claiming an amount due to it under a mortgage. These two amounts can be set off and I see no objection for adjusting the one against the other as pointed out by the decision in --'air 1918 Mad 995' (A) at p. 1006. The view taken therefore by the lower Court is correct and the second appeal is dismissed with costs.
(2.) LEAVE to appeal is refused.;
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