S.K.KESHOTE, J. - (1.) HEARD learned counsel for the parties, perused the company application, reply filed thereto by the respondent and the rejoinder filed by the Official Liquidator. In this application under Sections 446 and 477 of the Companies Act, 1956 (hereinafter referred to as the Act), the prayers made by the Official Liquidator of M/s. Amfort Agro Finance Ltd. (in liquidation) read as under: (i) The respondent(s) may be summoned and may be examined under Section 477 of the Companies Act of 1956 on oath in order to fix up the liability with regard to the aforesaid amount and order for payment of Rs. 3,25,360.00 (Rupees Three lacs twenty five thousand three hundred sixty only) as on Sept. 1999 plus further interest @ 12% on the amount thereafter till the date of payment may be passed in favour of the applicant Petitioner and the Respondents may be held liable for payment jointly and severally. (ii) In the alternative the application may kindly be tried under Section 446 of the Companies Act, 1956 and a decree for the outstanding amount may be passed. (iii) Any other appropriate order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be passed in favour of the applicant.
(2.) IN the reply to the application the respondent has admitted that he took a loan of Rs. 1,96,000 for purchase of an HMT Tractor and a Trolley from the company (in liquidation) in the month of March 1994. It is submitted that for this purchase of the tractor and trolley a sum of Rs. 48,000 was paid by the respondent as margin money to the company (in liquidation) The company (in liquidation) also recovered a sum of Rs. 3,920 from the respondent on 15 -3 -1994 as service charges, but no service was effected. The next averment made is that the Official Liquidator in the application has not shown the payments made by the respondent to the company in liquidation. The claim filed by the Official Liquidator is stated to be barred by time. The amount of interest, as per the case of the respondent, is not at all chargeable as there was no agreement to pay interest. It is urged that otherwise also the respondent could not be said to be defaulter for the reason that he was always ready and willing to repay the loan money as per schedule, but the company itself went in liquidation. Lastly a defence has been taken that on account of negligence committed by the company (in liquidation) by not registering the vehicle and by not getting it insured in an accident one Ram Gopal filed a claim case before the MACT Tonk on 16 -10 -1996 which was registered as Claim Case No. 243 of 1996 - Ram Gopal v. Khemraj in which the respondent is one of the non -applicant. In that case the claimant has claimed a sum of Rs. 11,00,000 as compensation. On account of negligence of the company in liquidation in not getting the vehicle duly insured and registered, the claim has to be reimbursed by the company. The prayer has been made for rejection of the application and a direction to the Official Liquidator to contest the claim case before the MACT and in case any award is passed by the MACT, the same to be paid by the Official Liquidator. Rejoinder to the reply is filed by the Official Liquidator. It is admitted that a sum of Rs. 48,000 has been paid as margin money by the respondent. After adjustment of the margin money of Rs. 48,000, a sum of Rs. 1,48,000 was given to the respondent as loan for purchase of tractor and trolley in the month of March 1994. It is next stated that the tractor and trolley were purchased and delivery of the same was taken by the respondent, but not a single pie has been paid towards the loan. The Official Liquidator has come up with the case that it is always the duty of the purchaser of the vehicle to get the same insured as per the provisions of the Motor Vehicles Act, and as such the respondent himself was required to get the vehicle insured. As to the claim made for a sum of Rs. 3,920, it is submitted that the respondent has not filed any receipt of the same. It has next been stated that otherwise also it is the amount paid towards the service charges and not towards the repayment of the loan. Re the plea taken of the limitation, it is submitted the properties of the company vest in the custody of the High Court from the date of the order dated 14 -7 -1995 and the Official Liquidator is entitled to recover the amount of debt from the respondent. Re the plea taken by the respondent that the interest is not be payable it is stated that as per the documents provided by Shri Sajjan Singh Rathore in the form of Register, the rate of interest has been mentioned as 12% p.a. On the loan amount disbursed to the respondent interest @ 12% p.a. was payable and is chargeable till realisation of the amount and accordingly upto September, 1999 a sum of Rs. 1,29,360 was due and payable towards interest. So far as defence taken regarding the sum claimed in the MACT case, it is urged that the respondent being the owner of the vehicle is liable for any act or negligence and there is no question of any liability of the company (in liquidation) to register the vehicle. The respondent has not filed any further pleadings to the rejoinder filed by the Official Liquidator. The following points for consideration arise in the matter : (1) Whether the respondent is entitled for set off a sum of Rs. 3,920 against the outstanding loan amount; (2) Whether the application is barred by limitation; (3) The respondent is not a defaulter in payment of instalments of loan amount as the company itself went in liquidation; (4) Whether it is the liability of the company in liquidation to get the vehicle insured and as a result of default therein it is liable to reimburse for the ultimately amount of compensation to be awarded to the claimant in the claim case No. 243/1996. 3A. The respondent has not produced any evidence that Rs. 3,920 has been paid by him to the company. Otherwise also as per his own case, this amount has been taken by the company towards the service charges. What were the terms and conditions of the services to be provided have also not been brought on record by the respondent. So on both these counts, this claim made by the respondent cannot be accepted. This application is filed by the applicant under Sections 446 and 477 of the Act. The respondent in the reply has taken a point that the claim made by the Official Liquidator is barred by time, but nothing has been said with reference to any of the provisions of the Act or limitation Act. How this claim is barred by time has not specifically been mentioned with respect to the provisions of the Limitation Act or Act. Be that as it may, otherwise also if we go by the provisions of Section 477 of the Act, there is no limitation prescribed for taking proceedings thereunder. Under Section 477 the court may, at any time after the appointment of a provisional liquidator or the making of a winding up order, summon before it any officer of the company or person known or suspected to be indebted to the company. Winding up order in this matter has been made on 14 -7 -1995.
(3.) SUB -section (5) of Section 477 of the Act provides that if, on his examination, any person so summoned admits that he is indebted to the company, the Court may order him to pay to the provisional liquidator or, as the case may be, the liquidator at such time and in such manner as to the Court may seem just, the amount in which he is indebted, or any part thereof, either in full discharge of the whole amount or not, as the Court thinks fit, with or without costs of the examination. Sub -section (7) of Section 477 lays down that the orders made under Sub -sections (5) and (6) shall be executed in the same manner as decrees for the payment of money or for the delivery of property under the Code of Civil Procedure, 1908.;