1992 (2) TMI 269 - SC - Companies Law

When does a company become liable to pay interest under section 73(2A) of the Companies Act, 1956? Held that - It cannot but be held that the payment of interest is only compensatory and not penal. Merely because clause 10 to which a reference has already been made uses the word penal , it cannot amount to penalty. Viewing the statutory provisions from the above perspective, I agree with my learned brother that the liability to repay the excess amount arose on the expiry of the eighth day from 1st November, 1990.

Summary

Issues Involved:
1. Scope of liability under section 73(2A) of the Companies Act.
2. Meaning of the word "forthwith."
3. Whether the payment of interest is penal in nature.
4. Whether administrative inconvenience could be pleaded to avoid statutory liability.

Issue-wise Detailed Analysis:

1. Scope of Liability under Section 73(2A) of the Companies Act:
The primary issue in the appeal was determining when a company becomes liable to repay excess application money for shares or debentures and consequently liable to pay interest under section 73(2A) of the Companies Act, 1956. The judgment clarified that the liability to repay the excess money arises on the expiry of ten weeks from the date of the closing of the subscription lists, and interest begins to accrue at the end of eight days from this date. The court rejected the High Court's view that the liability arises on the date of allotment if made before the expiry of ten weeks. The judgment emphasized that the legislative intent was to provide the company with a reasonable time to complete the formalities for despatching refund orders.

2. Meaning of the Word "Forthwith":
The term "forthwith" in the context of section 73(2A) was interpreted to mean immediate or instantaneous action as prescribed by the statute. The judgment clarified that "forthwith" should be understood in the context of the statutory requirements for repayment and accrual of interest, ensuring no ambiguity or uncertainty. The court cited various legal definitions and cases to establish that "forthwith" does not necessarily mean instantaneous but should be interpreted based on the statutory context.

3. Whether the Payment of Interest is Penal in Nature:
The judgment distinguished between interest payable under section 73(2A) and penalties. It clarified that interest under sub-section (2A) is compensatory and not penal. The interest is intended to compensate for the delay in repayment and is not a punishment. The court referred to the case of Mahalakshmi Sugar Mills Co. Ltd. v. CIT to support this interpretation, emphasizing that the interest is an accretion to the principal amount and not a penalty.

4. Whether Administrative Inconvenience Could be Pleaded to Avoid Statutory Liability:
The court rejected the argument that administrative inconvenience could be used to avoid statutory liability. It emphasized that statutory requirements must be complied with regardless of administrative challenges. The judgment cited the case of Sanjeev Coke Manufacturing Co. v. Bharat Coking Coal Ltd. to support the principle that legislative intent and statutory provisions override administrative difficulties.

Conclusion:
The Supreme Court allowed the appeal to the limited extent indicated, altering the High Court's judgment. The liability to repay the excess money arose on the expiry of ten weeks from the date of closing the subscription lists, with interest accruing after eight days from this date. The court made no order as to costs.