Visalakshi Vs. the Official Liquidator, High Court and the Official Liquidator of Dhanalakshmi Funds (India) Ltd. (In Liquidation) - Court Judgment

SooperKanoon Citationsooperkanoon.com/787115
SubjectCivil;Company
CourtChennai High Court
Decided OnJan-22-2008
Case NumberO.S.A. No. 263 of 2002
JudgeS.J. Mukhopadhaya and ;M. Venugopal, JJ.
Reported in[2008]141CompCas661(Mad); (2008)7MLJ435
ActsCompanies Act - Sections 446(2)
AppellantVisalakshi
RespondentThe Official Liquidator, High Court and the Official Liquidator of Dhanalakshmi Funds (India) Ltd. (
Appellant AdvocateChitra Sampath, Adv. for ;T.R. Rajaraman, Adv.
Respondent AdvocateA.P. Babu, Adv.
Excerpt:
- - ' 4. according to the learned counsel for the appellant, the appellant/applicant was aged about 10 years on the date of alleged pro-note dated 10.12.1987 and that the appellant/applicant was born on 19.05.1977 and that the learned single judge failed to notice the disparity in the signature of visalakshi on the demand promissory note and the alleged acknowledgment card filed in proof of service by the official liquidator and inasmuch as the claim application no. 1494 of 1993 by the official liquidator in seeking a decree against visalakshi is in the nature of a suit, the company court should have adjudicated on the aspect of correctness of service and failure to do the same, has resulted in the impugned order being passed against the appellant and therefore, in the interest of justice, the present appeal has to be allowed, so that an opportunity may be given to the appellant/applicant to prove her case. 13,640/- against the appellant/applicant and that the notice of the said application was served on the applicant and the affidavit of service was filed in court and as the applicant failed to appear in person or through an advocate before this court though the notice was served.m. venugopal, j.1. the o.s.a. no. 263 of 2002 is preferred by the appellant/applicant/respondent as against the orders passed by the learned single judge dated 16.07.2001 in c.a. no. 510 of 1999 in c.p. no. 88 of 1989.2. the appellant/applicant/respondent has filed an application c.a. no. 510 of 1999 in c.p. no. 88 of 1999 praying for a relief to set aside the decree for a sum of rs. 13,640/- with future interest passed in c.a. no. 1494 of 1993 in c.p. no. 88 of 1989 dated 14.06.1997.3. the learned single judge has passed an order in c.a. no. 510 of 1999 dated 16.07.2001 in dismissing the said application. the learned single judge has come to the conclusion that, the official liquidator has also filed an affidavit of proof of service where, there is an acknowledgment card which shows that notice has been served. the learned judge who heard the matter has recorded a finding that, 'the sole respondent has been served. in view of the factual finding recorded on 14.06.1997, that the sole respondent has been served, i am unable to accept the submission made by the learned counsel for the applicant that the sole respondent has not been served etc.'4. according to the learned counsel for the appellant, the appellant/applicant was aged about 10 years on the date of alleged pro-note dated 10.12.1987 and that the appellant/applicant was born on 19.05.1977 and that the learned single judge failed to notice the disparity in the signature of visalakshi on the demand promissory note and the alleged acknowledgment card filed in proof of service by the official liquidator and inasmuch as the claim application no. 1494 of 1993 by the official liquidator in seeking a decree against visalakshi is in the nature of a suit, the company court should have adjudicated on the aspect of correctness of service and failure to do the same, has resulted in the impugned order being passed against the appellant and therefore, in the interest of justice, the present appeal has to be allowed, so that an opportunity may be given to the appellant/applicant to prove her case.5. in the report of the respondent/official liquidator, it is specifically inter alia mentioned that 'the c.a. no. 1494 of 1993 was also filed for recovery of debt with interest amounting to rs. 13,640/- against the appellant/applicant and that the notice of the said application was served on the applicant and the affidavit of service was filed in court and as the applicant failed to appear in person or through an advocate before this court though the notice was served.' c.a. no. 1494 of 1993 was decreed on 14.06.1997 as prayed for by the official liquidator.6. the main stand of the respondent/official liquidator is that the appellant/applicant was given sufficient time to cause their appearance before this court but, she did not cause her appearance on the date of hearing.7. we have heard the learned counsels and noticed the rival contentions of the parties.8. it is an accepted principle that when an individual denies service by registered post on oath, then the burden shifts on the other side to prove service. it cannot be gain said that whether service of notice amounts to valid service or not must be considered by an appropriate authority before recording a finding that it was served.9. as a matter of fact, the word 'claim' in clause (b) of section 446(2) means, a claim which is legally enforceable and not barred by limitation of time. moreover the term 'claim' means in the nature of an actionable claim. in this connection, it is not out of place to point out that an order passed under section 446(2)(b) of the companies act by the competent court can be considered as a decree, which can be enforced for the purpose of realising the amount ordered to be paid.10. according to the respondent/official liquidator, a demand notice was issued to the appellant/applicant on 25.11.1992 calling upon her to pay the dues but the appellant did not make any payment till the date of c.a. no. 1494 of 1993. in the legal notice of appellant/applicant dated 05.02.1999, addressed to the respondent the claim of rs. 13,640/- + cost of rs. 35/- is denied and it is also mentioned that there was no necessity for the appellant either to borrow or to become a doctor and that the investment was made when the appellant/applicant was a minor etc.11. at this juncture, we point out that the affidavit of service of the respondent/official liquidator's clerk thiru. s. nandagopal (filed into court) indicates that the notice was taken out to the appellant/applicant as per order of this court by registered post with acknowledgment due for the hearing and the postal acknowledgment containing the signature of the respondent was filed herewith in proof of service.12. we have perused the acknowledgment card and find that it is addressed to 'visalakshi, bharathi nagar, thirumangalam 626 706' and that we are of the view that the signature of the addressee found in the acknowledgment card is different from that of the appellant/applicant and as such we come to the inevitable conclusion that the said registered notice was not received by the appellant/applicant. furthermore, the address of the appellant/applicant in c.a. no. 1494 of 1993 in c.p. no. 88 of 1989 is furnished as 'visalakshi d/o dr. b.v. subramaniam, 14-a, bharathi street, thirumangalam.' it is significant to make a mention that in the acknowledgment card, the door no. 14-a is not mentioned and the name of the street is also not mentioned as 'bharathi street' instead it is mentioned as 'bharathi nagar'. in c.a. no. 1494 of 1993 in c.p. no. 88 of 1989 on 24.04.1997, it is mentioned that 'service is awaited. at request of the official liquidator, the matter is adjourned by six weeks'. on 14.06.1997, this court has passed an order that though the sole respondent has been served, not chosen to contest the matter and therefore, the respondent was set exparte and the claim was decreed as prayed for.13. from the foregoing discussions and in view of the fact that we have come to the conclusion that the appellant/applicant has not received the registered notice as seen from the acknowledgment card filed into court as proof of service, we are inclined to interfere with the order of the learned single judge passed in c.a. no. 510 of 1999 in c.p. no. 88 of 1989 dated 16.07.2001 in refusing to set aside the decree passed on 14.06.1997 in c.a. no. 1494 of 1993 and set aside the order passed in c.a. no. 510 of 1999 dated 16.07.2001 to promote substantial cause of justice and with this observation, o.s.a. no. 263 of 2002 stands disposed of. without expressing our opinion on the merits of the case, we remit the matter back to the learned single judge and liberty is given to both parties to adduce oral and documentary evidence to prove the claim in c.a. no. 510 of 1999 in the manner known to law. considering the facts and circumstances of the case, the parties are directed to bear their own costs.
Judgment:

M. Venugopal, J.

1. The O.S.A. No. 263 of 2002 is preferred by the appellant/applicant/respondent as against the orders passed by the learned Single Judge dated 16.07.2001 in C.A. No. 510 of 1999 in C.P. No. 88 of 1989.

2. The appellant/applicant/respondent has filed an Application C.A. No. 510 of 1999 in C.P. No. 88 of 1999 praying for a relief to set aside the decree for a sum of Rs. 13,640/- with future interest passed in C.A. No. 1494 of 1993 in C.P. No. 88 of 1989 dated 14.06.1997.

3. The learned single Judge has passed an order in C.A. No. 510 of 1999 dated 16.07.2001 in dismissing the said application. The learned single Judge has come to the conclusion that, the Official Liquidator has also filed an affidavit of proof of service where, there is an acknowledgment card which shows that notice has been served. The learned Judge who heard the matter has recorded a finding that, 'the sole respondent has been served. In view of the factual finding recorded on 14.06.1997, that the sole respondent has been served, I am unable to accept the submission made by the learned Counsel for the applicant that the sole respondent has not been served etc.'

4. According to the learned Counsel for the appellant, the appellant/applicant was aged about 10 years on the date of alleged pro-note dated 10.12.1987 and that the appellant/applicant was born on 19.05.1977 and that the learned single Judge failed to notice the disparity in the signature of Visalakshi on the demand promissory note and the alleged acknowledgment card filed in proof of service by the Official Liquidator and inasmuch as the Claim Application No. 1494 of 1993 by the Official Liquidator in seeking a decree against Visalakshi is in the nature of a suit, the Company Court should have adjudicated on the aspect of correctness of service and failure to do the same, has resulted in the impugned order being passed against the appellant and therefore, in the interest of justice, the present appeal has to be allowed, so that an opportunity may be given to the appellant/applicant to prove her case.

5. In the report of the respondent/Official Liquidator, it is specifically inter alia mentioned that 'the C.A. No. 1494 of 1993 was also filed for recovery of debt with interest amounting to Rs. 13,640/- against the appellant/applicant and that the notice of the said application was served on the applicant and the affidavit of service was filed in Court and as the applicant failed to appear in person or through an Advocate before this Court though the notice was served.' C.A. No. 1494 of 1993 was decreed on 14.06.1997 as prayed for by the Official Liquidator.

6. The main stand of the respondent/Official Liquidator is that the appellant/applicant was given sufficient time to cause their appearance before this Court but, she did not cause her appearance on the date of hearing.

7. We have heard the learned Counsels and noticed the rival contentions of the parties.

8. It is an accepted principle that when an individual denies service by registered post on oath, then the burden shifts on the other side to prove service. It cannot be gain said that whether service of notice amounts to valid service or not must be considered by an appropriate authority before recording a finding that it was served.

9. As a matter of fact, the word 'claim' in Clause (b) of Section 446(2) means, a claim which is legally enforceable and not barred by limitation of time. Moreover the term 'claim' means in the nature of an actionable claim. In this connection, it is not out of place to point out that an order passed under Section 446(2)(b) of the Companies Act by the competent Court can be considered as a decree, which can be enforced for the purpose of realising the amount ordered to be paid.

10. According to the respondent/Official Liquidator, a demand notice was issued to the appellant/applicant on 25.11.1992 calling upon her to pay the dues but the appellant did not make any payment till the date of C.A. No. 1494 of 1993. In the legal notice of appellant/applicant dated 05.02.1999, addressed to the respondent the claim of Rs. 13,640/- + cost of Rs. 35/- is denied and it is also mentioned that there was no necessity for the appellant either to borrow or to become a Doctor and that the investment was made when the appellant/applicant was a minor etc.

11. At this juncture, we point out that the affidavit of service of the respondent/Official Liquidator's Clerk Thiru. S. Nandagopal (filed into Court) indicates that the notice was taken out to the appellant/applicant as per order of this Court by registered post with acknowledgment due for the hearing and the postal acknowledgment containing the signature of the respondent was filed herewith in proof of service.

12. We have perused the acknowledgment card and find that it is addressed to 'Visalakshi, Bharathi Nagar, Thirumangalam 626 706' and that we are of the view that the signature of the addressee found in the acknowledgment card is different from that of the appellant/applicant and as such we come to the inevitable conclusion that the said registered notice was not received by the appellant/applicant. Furthermore, the address of the appellant/applicant in C.A. No. 1494 of 1993 in C.P. No. 88 of 1989 is furnished as 'Visalakshi D/o Dr. B.V. Subramaniam, 14-A, Bharathi Street, Thirumangalam.' It is significant to make a mention that in the acknowledgment card, the Door No. 14-A is not mentioned and the name of the street is also not mentioned as 'Bharathi Street' instead it is mentioned as 'Bharathi Nagar'. In C.A. No. 1494 of 1993 in C.P. No. 88 of 1989 on 24.04.1997, it is mentioned that 'Service is awaited. At request of the Official Liquidator, the matter is adjourned by six weeks'. On 14.06.1997, this Court has passed an order that though the sole respondent has been served, not chosen to contest the matter and therefore, the respondent was set exparte and the claim was decreed as prayed for.

13. From the foregoing discussions and in view of the fact that we have come to the conclusion that the appellant/applicant has not received the registered notice as seen from the acknowledgment card filed into Court as proof of service, we are inclined to interfere with the order of the learned single Judge passed in C.A. No. 510 of 1999 in C.P. No. 88 of 1989 dated 16.07.2001 in refusing to set aside the decree passed on 14.06.1997 in C.A. No. 1494 of 1993 and set aside the order passed in C.A. No. 510 of 1999 dated 16.07.2001 to promote substantial cause of justice and with this observation, O.S.A. No. 263 of 2002 stands disposed of. Without expressing our opinion on the merits of the case, we remit the matter back to the learned single Judge and liberty is given to both parties to adduce oral and documentary evidence to prove the claim in C.A. No. 510 of 1999 in the manner known to law. Considering the facts and circumstances of the case, the parties are directed to bear their own costs.