S.K. Keshote, J. - (1.) THIS application has been filed under Section 456 of the Companies Act, 1956, read with Section 468 of the said Act and Rule 9 of the Companies (Court) Rules, 1959, with the prayer that the respondent -Board be directed to make payment of the dues of Rs. 20,84,284 along with interest at the rate of 18 per cent, per annum and/or in the alternative direct the Chief Presidency Magistrate/District Magistrate of Mumbai for recovery of the amount aforestated along with interest at the rate of 18 per cent, per annum from the respondent -company and deliver it to the official liquidator.
(2.) THE respondent, Maharashtra State Electricity Board, is a trade debtor of the company in liquidation. The ex -directors of the company in liquidation submitted their statement of affairs on September 13, 1994. In Schedule II title as "trade debtors" enclosed with the statement of affairs the ex -directors have shown the name of the respondent which is appearing at No. 11 and a debt has been shown to be recovered from it to the tune of Rs. 20,84,824. The photo copy of the statement of affairs is enclosed with the application as annexure 1. It is stated that the debt has been shown by the ex -directors as doubtful but no details have been given in this regard. The official liquidator has stated in the application that in any case it is an actionable claim and recoverable from the respondent -Board as a trade debt. The official liquidator by its notice dated January 23, 1995, claimed from the Board that a sum of Rs. 20,84,824 is due to the company and the same, therefore, may be paid. The copy of the notice has been enclosed with the application as annexure 2. The reminder was sent by the official liquidator in August, 1996. A copy of the same has been enclosed with the application as annexure 3. The reply has been received from M/s. Little and Co., Advocates and Solicitors, dated October 7, 1996, on behalf of the respondent -Board to the effect that no amount is due from the respondent -Board on the contrary the company owes a sum of Rs. 75 lakhs for which it has already filed a suit in the year 1991 without having any knowledge of the winding up proceedings. A copy of the reply so received has been enclosed with the application as annexure 4. It is stated that as per provisions of the Companies Act, 1956, Sections 528 to 530 read with the Companies (Court) Rules, 1959, if any amount is to be recovered by the creditors the same may be recovered. It is averred that if any amount is to be recovered by the creditors the same can be recovered by proving the claim filed before the official liquidator as per law. The refusal to make payment, which is due to the company is not permissible in law on the pretext of the alleged dues. It is further averred that apparently no amount is due to be recovered from the company in liquidation by the respondent -Board inasmuch as admittedly the suit for recovery is still pending before the Bombay High Court. Making reference to rule 270 of the Companies (Court) Rules, 1959, it is submitted that in a winding up no claim by the company against any person shall be compromised or abandoned without the sanction of the court upon notice to such person as the court may direct. In view of this position of law it is stated that the plea of having outstanding against the company in liquidation is not tenable in law. Further, what is stated is that a suit also cannot proceed against the company in liquidation without the leave of the court. In para. No. 4 of the application, it is submitted that the official liquidator is entitled to take into custody all the assets and actionable claims to which the company appears to be entitled. The notice has been issued by the official liquidator to the respondent -Board and it has refused to make payment of the dues of company and as such it has become necessary for the official liquidator to move this application for appropriate directions. On March 26, 1999, this court ordered for issue of notice to the respondent. On August 5, 1999, Manish Bhandari, Advocate, put appearance on behalf of the respondent -Board. On his request four weeks time was given to file reply to the application.
(3.) THE office reported on September 22, 1999, that "reply not filed". The matter was placed on board on September 23, 1999, on that day nobody appeared on behalf of the respondent. However, the reply was not filed. The office reported on October 6, 1999, that "reply not filed". On October 7, 1999, the matter was placed on board and nobody appeared on behalf of respondent and the case has been adjourned. I find from the report of the Registry that the reply has not been filed on February 23, 2000, March 22, 2000, March 29, 2000, May 10, 2000, July 26, 2000, August 2, 2000, and April 1, 2002. The matter is placed on board today. Not only is the reply not filed by the respondent -Board but nobody is also present on its behalf.;