- (1.) Mr. Bose, learned advocate appears on behalf of applicant in CA 131 of 2017. He seeks direction in terms of prayers (a) and (b) in Judge's Summons. The prayers are reproduced below: "(a) Communication dated 3rd February, 2017 and 23rd February, 2017 issued by the Deputy Official Liquidator, High Court, Calcutta be set aside and/or quashed; (b) Direct the Official Liquidator, High Court, Calcutta to forthwith proceed to adjudicate the petitioning creditor's claim based on the affidavit of proof of debt based on the orders dated 14th May, 2014 and 9th April, 2015 passed in C.P. NO.452 OF 2013." He submits, his client is a foreign entity. It transferred money to the company (in liquidation) for supply of goods. The supply was not made. Hence, his client became a creditor of the company and as such filed petition for winding up. Winding up order was made. Official Liquidator, by impugned letters, is seeking proof of debt otherwise than what had been disclosed by his client in the allowed winding up petition. When Court accepted there existed admitted debt due to his client, to find the company was unable to pay its debts and order winding up, Official Liquidator is completely unjustified in asking for any other proof than what has already been furnished. He submits further, proof has been tendered in terms of relevant form under applicable rules in Companies (Court) Rules, 1959. He presses for orders being made.
(2.) Ms. Sikdar, learned advocate appears on behalf of Official Liquidator and relies upon impugned letters. She submits, by letter 3rd February, 2017, the office had pointed out that affidavit filed by applicant did not contain any documentary evidence in support of claim nor ledger account had been annexed. By impugned letter dated 23rd February, 2017, the office drew applicant's attention to rules 149, 151, 159 and 160. There has not been compliance and as such, the office does not have proof of claim from applicant.
(3.) It appears to Court Mr. Bose has contended admission. The admission was made by the company (in liquidation) with consequence for direction of its winding up. Now, the office wants proof of debt. Applicant cannot claim Official Liquidator to be bound by admission made by the company (in liquidation) causing it to suffer direction for winding up. Sections 17 to 21 in Evidence Act , 1872 are relevant for purpose of applicable law regarding admissions. Section 17 defines admission as made by any of the persons and under the circumstances mentioned thereunder. Persons, mentioned thereafter in the Act, parties, suitor in representative character, party interested in subject matter, person from whom interest is derived parties to the suit and persons whose position must be proved against party to suit. Where the company (in liquidation) is said to have admitted a debt owing to applicant, Official Liquidator is not included as a person with regard to such admission made a by party in the winding up action. Official Liquidator came in upon order of winding up. Admission by the company (in liquidation), relied upon by Court to direct winding up, therefore, is not available as proof required by the office. This is so because the office, not being a party, had not made the admission but is requiring proof of debt. The office, if can be said to be a person, has derived interest from a party in the winding up proceeding under the statute but that situation is not provided for in Evidence Act , with regard to admissions. Mr. Bose relies on disclosures in the winding up petition, being swift messages as proof of transfer of money to the company (in liquidation). Rule 149, relied upon by the office, requires every creditor to prove his debt unless the Judge in any particular case directs, inter alia, any creditor to be admitted without proof. The rule goes on to provide, formal proof will be required unless Official Liquidator shall in any special case, otherwise direct, in a winding up by Court. ;