1961 (10) TMI 32 - HC - Companies Law

Summary

Issues Involved:
1. Priority of claims between the petitioner and the mortgagee bank.
2. Genuineness of the petitioner's claim.
3. Maintainability of the present application.
4. Right of third parties to claim payment from a receiver.

Detailed Analysis:

1. Priority of Claims Between the Petitioner and the Mortgagee Bank:
The primary issue was whether the petitioner's claim for Rs. 38,813.40 should take precedence over the mortgagee bank's claim. The court referenced the case of K. Rajagopalachari v. Jamal Ayisha Bibi AIR 1925 Mad. 571, which established that a mortgagee who acquiesces in the management of property by a receiver cannot later claim precedence over the receiver's expenses. The court agreed with this precedent, stating that the bank had benefited from the receiver's management, which increased the mill's sale price. Consequently, the court held that the receiver's expenses in running the mill should have priority over the bank's claim.

2. Genuineness of the Petitioner's Claim:
The bank questioned the genuineness of the petitioner's claim, suggesting discrepancies in the amounts claimed and the timing of the claims. The court noted that the receiver had acknowledged a liability of Rs. 38,813.40 and that the petitioner was willing to accept this amount. The bank's affidavit did not directly challenge the amount admitted by the receiver. Given the lack of substantial evidence against the petitioner's claim and the receiver's acknowledgment, the court found no justification for further inquiry.

3. Maintainability of the Present Application:
The bank contended that the petitioner was seeking a decree, which should be pursued under Chapter XIIIA of the Original Side Rules or through a final judgment application. The court examined various authorities, including Kerr on Receivers and cases like Brocklebank v. East London Railway Co. [1879] 12 Ch. D. 839 and In re Ernest Hawkins & Co. [1915] 31 TLR 247. The court concluded that a third party could indeed apply for payment by summons in the action where the receiver was appointed. The court emphasized that it had the discretion to either adjudicate the claim within the action or allow a separate suit.

4. Right of Third Parties to Claim Payment from a Receiver:
The court discussed the general practice of allowing third parties to claim payment from a receiver within the action where the receiver was appointed. It referenced Halsbury's Laws of England and High on the Law of Receivers, which support the practice of determining such claims within the original action. The court also cited local precedents where similar applications were entertained and granted. Based on these principles, the court found the petitioner's application to be maintainable.

Conclusion:
The court directed the receiver to pay the petitioner Rs. 38,813.40 from the sale proceeds of the mill. The court also addressed the costs of the rehearing, directing the bank to bear the costs since it did not succeed in its contentions. The receiver was allowed to retain his costs from the assets in his hands.