Ramaprasada Rao, J. - (1.) THIS is an application taken out by the members' voluntary liquidator against the respondents for a direction that they may be asked to pay the amounts respectively due and payable by them and as set out in paragraph 6 of the affidavit in support of the application, the said amounts being the principal due on the second and final calls over the shares admittedly held by the respondents in Mahalakshmi Oil Mills and Industries Limited (in members' voluntary liquidation). Only the first respondent has filed a counter -affidavit and respondents Nos. 2 to 5 do not appear before me. The first respondent, in his counter -affidavit, admits that the claim is not barred by limitation as it is one arising in the course of liquidation proceedings, but objects to the claim for interest from October 30, 1956, at the rate of 9 per cent, per annum. He states that under the Companies Act (Act 1 of 1956), interest can be claimed only from the date on which this court directs him to pay the same, that too at 4 per cent. He also alleges that the company mortgaged its assets including the unpaid call moneys by a mortgage deed dated February 24, 1950, in favour of SP. PR. Ramayee Achi and that, therefore, the said mortgagee is a necessary party before any directions could be given regarding the payment of the unpaid calls. He has also stated that if the mortgagee is made a party to this application, he is willing to deposit the money into court provided this court directs him to do so. In any event, he is ready and willing to deposit the sum of Rs. 1,250 due and payable by him as unpaid call money to this court. On the averment of the first respondent that the mortgagee is a necessary party, the mortgagee was duly impleaded as a third party to this application. The mortgagee filed a counter -affidavit stating that she is not submitting herself to the jurisdiction of this company court and wishes to stand outside the winding up proceedings and exhaust the remedies available to her under the mortgage deed and in O.S. No. 38 of 1958 on the file of the court of the subordinate judge, Chinglepet, which the mortgagee has already filed and has obtained a decree thereon. In the said mortgage suit, the first respondent, who was a party therein along with the other directors of the company in liquidation, undertook that he will pay all the amounts collected towards further calls of the share amount to the credit of the mortgage suit. In the light of this undertaking, the third party mortgagee submits that all the call moneys which are sought to be collected by the voluntary liquidator in this application in any event should be directed to be put into this court with liberty to her to draw out the same after such deposit. To the counter -affidavit filed by the first respondent and the third party mortgagee, the voluntary liquidator filed reply affidavits in which he categorically states that he has no objection to collect the unpaid call moneys and deposit the same in this court and the third -party mortgagee being paid out the same, so that the mortgagee may give credit to the same against the decree amount in O.S. No. 38 of 1958 on the file of the court of the subordinate judge of Chinglepet and enter up part satisfaction. The applicant also states in answer to the counter affidavit of the first respondent, that he is entitled to interest at 9 per cent, per annum on the amounts due from October 30, 1956, that being the date of the original demand. His claim for interest is based on the ground that the company has suffered a decree and has to pay the same with interest at 9 per cent, to the third party mortgagee.
(2.) AS already stated, respondents Nos. 2 to 5 are ex parte. Only the first respondent contests this application mainly on the ground that he is not liable, to pay interest as demanded. The principal amount as stated in paragraph 6 of the affidavit in support of the application is admitted by the first respondent. It is, therefore, clear that all the respondents having defaulted in the payment of the unpaid calls, they are liable to contribute and pay to the applicant the principal amount of call moneys as set out by the liquidator in paragraph 6. The only remaining question is whether the liquidator is entitled to claim interest at the rate of 9 per cent, from October 30, 1956, or from any other date. It is now well settled that, though the payment of unpaid call moneys originates under a contract, it has become a statutory liability under the Indian Companies Act, after the winding up of the company. What was, therefore, a debt ex contractu has become a debt ex legi. It is also not disputed that the claim of the liquidator is not barred due to the supervening winding up proceedings. This proposition is well supported by judicial precedents and, as it is not in dispute before me, I do not want to refer to the decisions of courts which support the view that notwithstanding the bar of limitation under the common law, the liquidator can claim such unpaid call moneys after the winding up of the company by adopting the prescribed process under the Companies Act.
(3.) THE only issue for determination, therefore, is whether the liquidator is entitled to claim interest. In the view that I intend taking in the matter, the question as to what should be the rate of interest will not arise.;