- (1.) THIS is an application under Section 183 (5), Companies Act (7 of 1913) by the U. P. Oil Mill agency, Kanpur (hereinafter described as claimant) against a decision of the official liquidators awarding it interest up to the date of the winding up order. The claimant contends that interest should be allowed till the date of payment.
(2.) THE claimant had deposited two sums of Rs. 25,000/- and Rs. 15,000/- with the Saraswati soap and Oil Mills Ltd. (hereinafter described as Company) while it (the Company) was a going concern. When the Company went into liquidation the claimant filed a claim before the official liquidators and urged that it was entitled to priority against other creditors. The official liquidators admitted the claim but denied priority to the claimant. A petition under Section 183 (5) was filed by the claimant and the only point argued on that occasion was whether or not it was entitled to priority. By my order dated 5-12-1952 I held that the claimant was not entitled to priority in respect of the sum of Rs. 25,000/- but was entitled to priority in respect of the sum of rs. 15,000/ -. As the question of interest was not in issue at that time I was not invited to give a finding on that issue. It was remarked in the said order that the aforesaid sum of Rs. 15,000/- would be payable as a preferential claim "together with such interest as may be" payable thereon". When the time-of payment came the official liquidators offered to the claimant interest till the date of the winding up order. The claimant however maintained, as already stated, that it should be allowed interest till the date of payment.
(3.) WHEN a company goes into liquidation and an official liquidator is appointed the creditors have to lodge their claims and prove their debts before the official liquidator. Section 230, companies Act lays down that certain debts are entitled to priority and interest on those debts is to be paid up to the date mentioned in Sub-section (5) of that section. The claimant's debt however did not fall under Section 230 of the Act and therefore Sub-section (5) has no application. The finding in the former litigation was that this sum of Rs. 15,000/-constituted a trust money in the Company's hands and therefore the claimant was entitled to priority not under section 230 of the Act but independently of it. Notwithstanding this finding the ordinary rules relating to the proof of claims and debts govern this claim also. The said claim is subject to the same rule about interest as any other debt provable in the liquidation proceedings. The mere fact that the debt was trust money should not entitle the claimant to claim any special treatment in the matter of payment of interest. Reference was made by the learned counsel for the claimant to Section 23 of the Trusts Act. But this section instead of helping him goes against his claim. It is provided in this section that the trustee who commits a breach of trust is not liable to pay interest except where he has actually received interest or ought, or may be fairly presumed, to have received interest or where the breach consists in unreasonable delay in paying trust money to the beneficiaries. In the present case the official liquidators have not received interest for this sum from any other person. Nor is it a case where they ought, or may be fairly presumed, to have received interest; nor has any unreasonable delay been made in paying the trust money. Therefore, if the point in dispute is to be decided by considerations of the Trusts Act only, the claimant is entitled to no interest whatsoever. But the case is not governed by Section 23, Trusts Act. The relevant provision is that contained in Section 229, Companies Act. It is laid down in this section that: "in the winding up of an insolvent company the same rules shall prevail and be observed with regard to the respective rights of secured and unsecured creditors and to debts provable and to the valuation of annuities and future and contingent liabilities as are in force for the time being under the law of insolvency with respect to the estates of persons adjudged insolvent. " It may be pointed out that the Company in question is an insolvent company in the sense that it is unable to pay its debtors in full. The case of companies which can pay their debts and yet have some surplus left stands on a different footing. In the cases of such companies the creditors can be paid interest up to the date of payment even if the shareholders or even the preferential shareholders are left totally unpaid. But the present Company, as already stated, is not a solvent company. The payment must, therefore, be governed by the rules applicable to insolvency cases.;