Voluntary Liquidator, Bharat Traders Ltd. Vs. Rattan Singh - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - in the ^course of the performance of his duties, he collected some money, but failed to deposit the same in the bank account of the appellant-company or to remit the same to the latter's head office. sub-section (1) of section 543 of the act clearly shows that this provision is applicable only to those persons who take part in the promotion or formation of a company or directors, past or present, managing agents, secretaries and treasurers, managers, liquidators, or officers of the company. besides, section 468 is clearly applicable to the case of the respondent and under this provision, there is no restriction of limitation of time.harbans lal, j.1. this is a letters patent appeal against the judgment of a learned single judge, dated november 1, 1973, in civil original no. 91 of 1972, by which the application of the appellant under section 518 read with section 468 of the companies act, 1956 (hereinafter called ' the act '), was dismissed.2. the appellant-company, namely, the bharat traders ltd., sirsa, was wound up by voluntary liquidation by means of a resolution dated march 26, 1959. the respondent was an agent of the appellant-company from october 1, 1950, to december 31, 1951, entrusted with the work of sale of shares and supply of articles to the customers. in the ^course of the performance of his duties, he collected some money, but failed to deposit the same in the bank account of the appellant-company or to remit the same to the latter's head office. the books of the appellant-company showed a debit balance of rs. 1,114-15-6 against the respondent. according to the account, a copy of which is exhibit p-1, the amount due from the respondent up to december 31, 1951, was rs. 2,582-11-6, while the amount to his credit was rs. 1,217-12-0, another amount of rs. 250 was credited to the account of the respondent in 1952 and thus the amount due from the respondent was rs. 1,114-15-6. the managing director of the appellant-company had also made complaints to the senior superintendent of police, meerut, on october 13, 1951, and on november 7, 1951, but without any result. the whereabouts of the respondent were not known for a considerable time. ultimately, after the respondent could be traced, a registered notice was sent in october, 1971, by the voluntary liquidator the appellant-company produced shri amar nath, the managing director of the company, as a witness and also the accounts regularly maintained by it in the regular course of business.3. the learned single judge non-suited the appellant-company and dismissed the petition on the ground that the claim of the appellant-company was time-barred and that from the evidence on the record, the liability of the respondent was not established. it was held that under article 89 of the, indian limitation act, 1908 (hereinafter called the ' old act'), the claim against the respondent became barred by time on the expiry of three years from the refusal to pay after the demand had been made. the claim was also held to be time-barred under section 543 of the act, after the lapse of five years from the date of its winding up. on merits, it was held that the accounts produced by the appellant-company were not sufficient to make out the case against the respondent under section 34 of the indian evidence act. the present appeal is directed against that judgment of the learned single judge.4. it has been strenuously urged by shri roop chand, the learned counsel for the appellant-company, that the petition of the company is under section 468, read with section 518 of the act, and, thus, it could not be thrown out on the ground of limitation. section 468 of the act is reproduced below :' the court may, at any time after making a winding-up order, require any contributory for the time being on the list of contributories, and any trustee, receiver, banker, agent, officer or other employee of the company, to pay, deliver, surrender or transfer forthwith, or within such time as the court directs, to the liquidator, any money, property or books and papers in his custody or under his control to which the company is prima facie entitled.'5. its perusal shows that after the passing of the winding-up order, the court is competent to direct any trustee, receiver, banker, agent, officer or other employee of the company to make payment of any money or to deliver any property due from him ' at any time ' to the liquidator. this provision can be availed of under section 518 of the act, even by the companies which have been wound up voluntarily. the learned single judge held that an agent cannot be proceeded against regarding any claim after the expiry of three years from his refusal to pay after the demand had been made on him. reliance in this behalf has been placed on article 89 of the old act which is equivalent to article 3 of the limitation act, 1963, (hereinafter called the ' new act'). according to either of these provisions, in a case by a principal against his agent, period of three years has been prescribed, but the same begins to run when the account during the continuance of the agency is demanded and refused or where no such demand is mn.de, when the agency terminates. in the present case, there is no evidence whatsoever to show that the agency of the respondent had been brought to an end at any time, nor is there any evidence to show that demand had been made before the notice, exhibit c, which was given in october, 1971. thus, in the present case, even if article 89 of the old act, or article 3 of the new act, is applicable, the claim of the appellant-company cannot be held to he time-barred. the claim of the appellant-company cannot also be thrown out on the ground of limitation under section 543 of the act, because this provision is not applicable to the case of the respondent. sub-section (1) of section 543 of the act clearly shows that this provision is applicable only to those persons who take part in the promotion or formation of a company or directors, past or present, managing agents, secretaries and treasurers, managers, liquidators, or officers of the company. the respondent was working only as an agent to carry on the sales on behalf of the appellant-company. so, he is not covered by any of the categories, referred to in this provision. besides, section 468 is clearly applicable to the case of the respondent and under this provision, there is no restriction of limitation of time. a similar matter came up for consideration before harbans singh j. (as he then was), in bharat traders ltd. (in liquidation) v. sadhu singh [1968] 38 comp cas 537, 542 (punj), wherein it was held :' the main contention of the learned counsel for the respondent thus being negatived, the only other question that remains for consideration is whether there is any limitation period fixed for the court passing such an order and if so, what that provision is the contention of the learned counsel for the respondent was that these proceedings are in the nature of a suit, for which he has to take the permission as laid down in section 512 and for a suit, limitation prescribed in the limitation act is three years and that this application was made more than three years after the date of winding-up proceedings and even if the terminus a quo is taken to be the date of winding up, this application was barred by time, being in the nature of a suit. 1 do not rind myself in agreement with this contention. once the provisions of section 468 are found applicable, then that section provides that the court can pass an order ' at any time'. no limitation is laid and the matter is entirely left to the discretion of the court.'6. the anding of the learned single judge that the claim of the appellant-company is barred by time is, thus, reversed.7. regarding merits of the claim, shri amar nath, p.w. no. 1, appeared in the witness box. he was working as a managing director of the appellant-company before it was wound up. he has unequivocally stated that the respondent was entrusted with the duty of making sales of the products of the company on its behalf and that though he carried on this business from october 1, 1950, to december 31, 1951, and collected some amounts, yet did not deposit the same in the accounts of the company or remit the same to the company and that after giving adjustment of all amounts sent by the respondent, an amount of rs. 1,114-1 5-6 was due from the respondent. the account relating to the respondent was also produced and its copy is exhibit p-1. the accounts were maintained regularly in the regular course of business. with regard to this evidence, the learned single judge came to the following conclusion :' in the instant case, the only evidence to fasten liability on the respondent consists of the entries in the books of account of the petitioner-company. there is no other evidence which is called primary. the entries in the books of account can only afford corroborative evidence and not primary evidence.'8. regarding the scope of section 34, indian evidence act, the learned single judge came to the conclusion that the books of account are relevant, but such statements are not alone sufficient evidence to charge any person with liability. section 34 of the indian evidence act is reproduced below :' entries in books of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability. '9. its perusal shows that the entries in the books of account regularly kept in the course of business are relevant, but in order to fasten liability on the person concerned, some other evidence is also necessary along with the entries in the books of account. in the present case, the statement made by shri amar nath, managing director, is on the record. his statement coupled with the entries in the books of account is, to our mind, sufficient to fasten the liability on the respondent. there is nothing on the record to show that the statement of the managing director cannot be given credence. it seems, the attention of the learned single judge was only confined to the entries in the books of account, and the statement made by shri amar nath, managing director, was not brought to his notice. we are, therefore, constrained to reverse the finding of the learned single judge in this respect and hold that there is sufficient evidence to arrive at the conclusion that the respondent is liable to pay the amount of rs. 1,114-15-6 to the appellant-company in lieu of the sales which he made as agent of the company.10. for the reasons mentioned above, we accept the appeal, allow the petition and order the respondent to pay rs. 1,114-15-6 along with the costs of the petition throughout.