United Hire Purchase and Land Finance (P). Ltd., (In Liqn.) Vs. Shri Kartar Singh - Court Judgment

Excerpt:
- - uhif/12 liqn/1762 dated 10.7.1987 was sent to the respondent by registered as well as ordinary post by the official liquidator asking him to pay a sum of rs. the working of such like 'committees' is that a member of the 'committee' can take the 'committee' amount by giving a bid and the bid amount is deducted from the total amount of the 'committee' and the balance is paid to the highest bidder. the loan was taken in the year 1983 and the petitioner was ordered to be wound up in august, 1985. according to him after excluding one year from the date of winding up order under section 458a of the companies act and another three years which are given under article 137, the limitation expired in the year 1989 whereas the present petition was filed in the year 1992, making it clearly time barred. thus, the official liquidator could have presented the application within five years and four months from february 4, 1977. therefore, the application filed on august 22, 1980, is well within time and is not barred by time. it is well settled that in applying those provisions, the periods excluded have to be added to the prescribed period (see maqbual ahmad v.ashok bhan, j.1. the present claim petition has been filed under section 446(2) read with section 468 of the companies act, 1956 (referred to as the act) by the official liquidator of m/s united hire purchase & land finance (p). ltd. - company in liquidation, (hereinafter referred to as the company). claim petition has been filed for releasing unpaid called amount together with interest thereon from the respondent.2. company was doing business to purchase, sell, hire out or sell on hire purchase system all kinds of vehicles, motor cycles, rickshaws, gramophones, pianos and musical instruments, machines etc., house equipments and all other articles that the company may deem fit.3. c.p. no. 10 of 1980 was filed in this court on 15.1.1980 for winding up of the company. the company was ordered to be wound up under the orders of this court on 22.8.1985. ex-managing director filed the statement of affairs with the official liquidator and books of account were handed over to him. on the scrutiny of accounts and from the statement of affairs, it was found that a sum of rs. 16,245/- was due against the respondent and realizable by the petitioner. that notice vide no. uhif/12 liqn/1762 dated 10.7.1987 was sent to the respondent by registered as well as ordinary post by the official liquidator asking him to pay a sum of rs. 16,245/- plus interest @ 18% per annum within a period of 15 days from the date of the issue of the notice, failing which the amount shall be recovered through the process of the court. these notices were duly served. acknowledgment due receipt was returned which has been exhibited as ex-p.w.2/2. respondent did not make any payment and thereafter the present petition was filed on 29.4.1991 with a prayer that an order be passed against the respondent for payment of rs. 16,245/- plus interest @ 18% per annum from the date of the last transaction i.e. 6.8.85 till its payment.4. upon service of the petitioner, written statement was filed by the respondent. respondent denied his liability to pay any amount. it was stated in the reply that no copy of any agreement or of any document showing any advance of loan has been attached with the petition.5. replication to the written statement was filed in which the allegations made in the written statement were controverted and the averments made in the petition were reiterated.6. upon the pleadings, the following issues were framed :-(i) whether the amount alongwith interest as claimed in the petition is due from the respondent? opp. (ii) whether the present petition is within limitation? opp. (iii) relief. 7. parties led their evidence. on behalf of the company pw 1, sh. paramjit singh, ex-managing director and p.w. 2 sh. k.g. chawla, an official of the official liquidator were produced. on behalf of the respondent, kartar singh, himself appeared as r.w. 1. no other evidence was led. by way of documentary evidence, petitioner produced accounts of the respondent as per ledger maintained by the company in due course of its business as ex. p.w. 1/2. ex. p.w. 2/2 is the a.d. receipt showing service of the notice sent by the official liquidator to the respondent.8. it has been stated by p.w. 1, paramjit singh, ex-managing director of the company that kartar singh-respondent took a sum of rs. 20,400/- as loan. after taking into consideration the repayment made by him a sum of rs. 16,245/- was still payable by him as debt to the company, which has been shown outstanding against kartar singh in the statement of accounts filed before the official liquidator. in the cross-examination the veracity of the accounts maintained by the company was not challenged. p.w. 2, official from the official liquidator is a formal witness, who has simply stated that according to the statement of affairs and the accounts filed with the official liquidator, a sum of rs. 16,245/- is due from kartar singh. kartar singh in his statement as r.w.1, denied that he had taken a loan of rs. 20,400/- from the company in the year 1983, that in fact he had only taken a 'committee' of rs. 4000/- for which he used to pay rs. 100/- every month. the working of such like 'committees' is that a member of the 'committee' can take the 'committee' amount by giving a bid and the bid amount is deducted from the total amount of the 'committee' and the balance is paid to the highest bidder. on the perusal of the pleadings, statement of the parties and the statement of accounts, it is clear that respondent had taken a loan of rs. 20,400/- from the company and as per the statement of accounts, ex. p.w. 1/2, it is clear that respondent had been paying the various amounts on different dates to the company. after giving him credit of the amounts paid still a sum of rs. 16,245/- remains payable to him by the company. the books of accounts maintained by the company are in the regular course of business and the veracity of these accounts has not been challenged by the respondent. p.w.1 paramjit singh has stated in categorical terms that a sum of rs. 16,245/-remains due towards him. company has been able to discharge onus on issue no. 1 that a sum of rs. 16,245/- remains due towards him. company has been able to discharge onus on issue no. 1 that a sum of rs. 16,245/- remains payable by the respondent and further that he is also liable to pay interest upon it. the second issue is with regard to the limitation. according to the counsel for the respondent, the present petition has been filed beyond limitation. the loan was taken in the year 1983 and the petitioner was ordered to be wound up in august, 1985. according to him after excluding one year from the date of winding up order under section 458a of the companies act and another three years which are given under article 137, the limitation expired in the year 1989 whereas the present petition was filed in the year 1992, making it clearly time barred. as against this, the case of the company is that the liquidator is entitled to add both the period of pendency of the winding up petition and one year following the winding up order to the three years period prescribed under article 137 of the limitation act. according to him, the limitation in this case would expire after 9 years of the passing of the winding up order i.e. 3 years under article 137 plus the duration of pendency of winding up proceedings and another year from the date of passing of the winding up order.9. section 458a of the companies act is as follows :-'458a. exclusion of certain time in computing periods of limitation.- not withstanding anything in the indian limitation act, 1908 (9 of 1908), or in any other law for the time being in force, in computing the period of limitation prescribed for any suit or application in the name and on behalf of a company which is being wound up by the court, the period from the date of commencement of the winding up of the company to the date on which the winding up order is made (both inclusive) and a period of one year immediately following the date of winding up order shall be excluded.'10. i do not find any force in the submission of counsel appearing for the respondent. the petition is not barred by limitation as contended by him. after excluding the period during which the proceedings were pending in this court and adding to it the period of one year given under section 458a of the act and the period of limitation of three years under article 137 of the limitation act, which would accrue from the date of the winding up order, the present petition is within time. section 458a starts with a non obstante clause that is notwithstanding anything contrary to the indian limitation act, 1908.11. the point in issue is not res integra. the matter has been considered in unico trading & chit funds (india) p. ltd. v. s.h. lohati,1, (1982) vol. 52 company cases 340, by the karnataka high court, wherein it was held as unden-' applying the law to the facts of the case on hand i see that the claim of the official liquidator against the respondents was a legally enforceable claim on october 3, 1975, the date on which the petition for winding up was presented to this court as the pronote was executed on october 8, 1973. winding up order was made on february 4, 1977 and, therefore, the clock of the law of limitation would come to a stop between october 3, 1975, and february 4, 1977 and for a further period of one year in terms of section 458a of the act. column 3 of article 137 of the indian limitation act states that time begins to run when the right to apply accrues. in the case of the present claimant right to apply accrued on february 4, 1977. thus, the official liquidator had 3 years plus the maximum advantage of section 458a of the act which would the exclusion of 1 year plus another year and 4 months. thus, the official liquidator could have presented the application within five years and four months from february 4, 1977. therefore, the application filed on august 22, 1980, is well within time and is not barred by time.' the point was again considered in new kerala roadways pvt. ltd. v. k.k. nanu, 1989 vol. 66 company cases, 715 by the kerala high court, wherein it was held as under:-'the right of the official liquidator to recover the dues of the company accrues only on and from the date of the winding up order. under article 137 of the limitation act, the period of limitation, namely 3 years, begins to run from the date on which the right to apply, accrues, namely the date of the winding up order. thus, on a plain reading of section 458a of the companies act, the exclusion that is to be made under section 458a of the companies act is the period commencing from the date of winding up order. section 12 to 15 of the limitation act provide for exclusion of time under certain circumstances. it is well settled that in applying those provisions, the periods excluded have to be added to the prescribed period (see maqbual ahmad v. onkar pratap, a.i.r. 1935 p.c. 85, and bhagwan swarup v. municipal board, ujhani, a.i.r. 1970 all. 652.' the petition is accordingly held to be within limitation and issue no. 2 is decided against the respondent and in favour of the petitioner.in view of the findings recorded above, i pass an order that a sum of rs. 16,245/- be recovered from the respondent. no evidence has been led regarding the agreed rate of interest. keeping in view the circumstances of the case and the rate of interest which was prevalent in the year 1983 when the amount was taken by the respondent, i fix the rate of interest at 12% per annum which the respondent shall pay from the last date of the transaction i.e. 6.8.85 till its payment. there shall be no order as to costs.