- (1.) A claim petition under Section 446 (2) read with Section 468, Companies Act, 1956, was decreed for the sum of Rs. 21,681. 33 against the present appellants without any future interest, vide judgment dated December 6, 1974. The same has been challenged in the present letters patent appeal.
(2.) ACCORDING to the averments in the claim petition, the appellants took a loan of Rs. 21,000 from the respondent on May 22, 1964, and entered into a hire-purchase agreement on the same day in respect of truck No. PUN-6058 for Rs. 26,880. According to the agreement, the loan and interest were payable in 24 instalments. The first instalment of Rs. 1,120 was payable on July 21, 1964, and thereafter, monthly instalments of the said amount had to be paid from August 21, 1964, to June 21, 1966. Pronote and receipt in connection with the said loan were also executed. Some amount was paid in instalments from time to time and the last amount of Rs. 9,500 was credited in the account of the appellants on December 1, 1967, after the sale of the said vehicle. Claim was made in the petition for the recovery of Rs. 20,313. 67 as principal and Rs. 2,952. 22 as interest for the period from April 1, 1970, to August 30, 1971, at the rate of 12 per cent. per annum. Before filing the claim petition, the official liquidator served a notice upon the appellants as required under the rules. As the liability referred to therein was not admitted, the claim petition was filed. In the written statements filed on behalf of the appellants, taking of the loan amounting to Rs. 21,000 and the execution of the hire-purchase agreement was admitted. It was further averred that the truck in question was surrendered to Sri Kanwar Sain, P. W. 2, the then managing director of the respondent-company, and thereafter no demand for the recovery of any amount was ever made. It is the case of the appellants that as the truck financed by the respondent-company had been taken over in 1967 there was no cause of action for filing the claim petition. According to their further averments, a sum of Rs. 27,283. 56 had been paid towards the loan which had not been fully adjusted. Objection was also raised to the effect that the claim petition was time barred. In view of the pleadings of the parties, the following issues were framed : "1. Whether respondent No. 1 surrendered the vehicle on November 3, 1967, as alleged by him and the hire-purchase agreement was terminated ? 2. Whether respondent No. 3 executed hire-purchase agreement and became a guarantor of respondent No. 1 ?
(3.) WHETHER the petition is within time ?;