R.P. Sethi, J. - (1.) GIVING benefit of the claim of set off to respondent No. 1, the learned company judge dismissed the petition of the appellant -company filed under Sections 446 and 468 of the Companies Act (for short "the Act") read with Rule 9 of the Companies (Court) Rules, 1959. It is contended that the benefit of set off could not be granted against the company which was in liquidation and that the claim of set off preferred by the respondent was barred by time.
(2.) SOME of the facts relevant in the case for proper adjudication of the controversy are that petitioner No. 1, that is, Maruti Ltd., was ordered to be wound up and a provisional liquidator appointed on July 22, 1977. Upon final order of winding up dated March 6, 1978, the appellant herein acquired the undertaking of the wound up company by virtue of the Maruti Limited (Acquisition and Transfer of Undertakings) Act, 1980, along with all rights, title and interest. The account books of the company showed a balance of Rs. 34,071.22 recoverable from the respondent. The official liquidator sent a registered notice calling upon the respondent to pay the amount with interest at the rate of 12 per cent, per annum from the date the amount fell due. The amount was not paid with the result that a petition for recovery was filed in this court. In the reply filed on behalf of the respondents the existence of the running account was admitted and it was emphatically denied that the appellant -company was entitled to receive the amount from the respondent. It was further submitted that according to the reconciliation statement furnished by the appellant -company goods of the value of Rs. 17,731.65 were shown to have been returned to the respondents and in fact no such goods had ever been returned by the appellant -company. The reconciliation statement furnished by the appellant -company was disputed and it was prayed that the petition filed be dismissed.
(3.) ON the pleadings of the parties, the following issues were framed : 1. Whether an amount of Rs. 34,071.22 inclusive of interest was due to the petitioners under the running account between the parties on March 31, 1977 ? 2. Whether the materials worth Rs. 17,731.65 were returned by the petitioner to the respondents ?;