1983 (10) TMI 222 - HC - Companies Law

Issues Involved:
1. Whether the petition is barred by limitation.
2. Whether the petitioner has obtained the sanction of the court for filing the petition.
3. Whether the respondents are liable to pay the amount claimed in the petition to the petitioner.
4. Whether the respondents are liable to pay interest on the amount due, and if so, at what rate.
5. Whether respondent No. 1 was reconstituted on April 1, 1976, and its effect.
6. Whether the firm, respondent No. 1, accepted the liability of the old firm, and its effect.
7. Whether respondent No. 3 retired from the firm, respondent No. 1, and its effect.
8. Whether respondents Nos. 4, 5, 6, 7, and 8 stood sureties to the extent of Rs. 3,75,000, Rs. 4,00,000, Rs. 30,000, Rs. 90,000, and Rs. 30,000, respectively.
9. Whether, after the change in the constitution of the firm, the liability of respondent No. 4 ceased to exist.
9A. Whether Shri Ravinder Kumar has not been appointed as liquidator according to law.
9B. Whether all the relevant and material facts have not been given in the petition and consequently it is not maintainable.
10. Relief.

Detailed Analysis:

Issue No. 1: Whether the petition is barred by limitation
The court examined whether the account between the parties was a mutual, current, and running account, which would allow the limitation period to start from the date of the last transaction. The petitioner argued that the limitation began on July 7, 1978, making the petition filed on July 4, 1981, within the three-year limit. However, the court found that the account was not mutual as the petitioner only extended loans to the respondent without any reciprocal transactions. The court concluded that the limitation period started from the date each loan was advanced, making the petition barred by limitation except for Rs. 13,260, which was within the limitation due to a partial payment made on July 7, 1978.

Issue No. 2: Whether the petitioner has obtained the sanction of the court for filing the petition
The petitioner obtained the necessary sanction under section 512 of the Companies Act, as evidenced by the order dated February 12, 1981. The court decided this issue in favor of the petitioner.

Issue No. 3: Whether the respondents are liable to pay the amount claimed in the petition to the petitioner
The court addressed the disputed amounts in the petitioner's accounts, specifically the entries of Rs. 11,410, Rs. 78,500, and Rs. 1,27,227.16. The court found that the first two amounts were not adequately proven, but the third amount related to unpaid interest was correctly calculated and debited. The court held that the respondents were liable for the amount of Rs. 13,260.

Issue No. 4: Whether the respondents are liable to pay interest on the amount due, and if so, at what rate
The court found that the petitioner was entitled to interest at rates specified in the pronotes, ranging from 12% to 18%. If no specific rate was mentioned, the petitioner was entitled to interest at 12% per annum.

Issues Nos. 5 and 6: Whether respondent No. 1 was reconstituted on April 1, 1976, and its effect; Whether the firm, respondent No. 1, accepted the liability of the old firm, and its effect
The court confirmed that respondent No. 1 was reconstituted on April 1, 1976, and the new partnership accepted the liabilities of the old firm. These issues were decided in favor of the petitioner.

Issues Nos. 7 to 9, 9A, and 9B:
The court noted that the burden of proving these issues was on the respondents, who did not press these issues. Consequently, these issues were decided against the respondents.

Relief:
The court partially accepted the petition, granting a decree against respondents Nos. 1 to 3 for the recovery of Rs. 13,260 with interest at 12% per annum from January 29, 1977, till the date of realization, along with proportionate costs. The petitioner was also entitled to future interest at 12% per annum until the amount was fully realized.

Conclusion:
The court's judgment addressed all the issues comprehensively, determining that the petition was largely barred by limitation except for a specific amount. The petitioner was granted a decree for the recoverable amount with interest, and the respondents' objections on various grounds were dismissed.

← Previous Next →