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TMI Blog1962 (3) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ourse of arguments, admitted that their clients were shareholders of the company. I may now take up issue No. 4 in C. O. No. 16 which is in identical language as issue No. 5 in the connected case. The case of the respondents is that no list of contributories was settled by the joint liquidators and no notice was received from them prior to the settlement of the lists enclosed with the petition. It was maintained that the settlement of the various lists of the contributories was made contrary to law and procedure as no opportunity was given to the respondents to contend before the liquidators that their names ought not to have been placed in the list or to contend that the assets of the company were sufficient to meet the existing liabilities. Shri Jai Krishna Suri, one of the voluntary liquidators, as P. W. 1 stated that he had brought the register containing the minutes of the extraordinary meeting at which a resolution for voluntary winding up of the company and also another resolution appointing him and Shri Harnam Das Bhasin as voluntary liquidators were passed. He also sent copies of the resolutions of the extraordinary meeting to the Registrar and produced a certificate o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether the several claims against the company as referred to in annexure "D" to the petition are admissible and if so to what extent. Annexure "D" is a list of creditors showing the amounts due to them. There are thirteen items in all. Items Nos. 1 to 4 deal with the claims of the staff including the claim of Rs. 6,473.76 nP. which is made by Shri J. K. Suri who was the managing agent and director of the company and who is now one of the voluntary liquidators. This claim has been contested. Item No. 8 is the claim of the Punjab State, Department of Industries, for Rs. 5,000 and item No. 9 is rent of Rs. 1,200 said to be due to the landlord, Shri Gurbachan Singh. The other claims are of certain shareholders and others which have not been challenged. Out of these three items the claim made by Shri Suri has been contested and it is contended that he is not entitled to receive anything. The case as set up by Shri Suri is that under paragraph 2 of the managing agency agreement, exhibit P.W. 1/95, the company shall pay to the managing agents, inter alia , office allowance till the company starts work and up to fifty maunds of milk supply per day at the rate of Rs. 350 per mensem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... serve any payment. Mr. Anand Mohan Suri on behalf of the company drew my attention to sub-section (3) of section 198 and section 353 of the Companies Act. The proviso to section 353 lays down that the minimum remuneration payable in pursuance of section 198 may be paid to the managing agent in such suitable instalments as may be specified, inter alia , in the managing agency agreement executed by the company. I cannot accept the view that there is any legal bar to the managing agent's claim of remuneration as made by him. I, however, do feel that in view of the fact that no work of the company was going on for the period for which remuneration is being claimed, his remuneration should be substantially reduced. There is some merit in this contention. In my view, remuneration may be claimed by Shri Suri at the rate of Rs. 175 per mensem and not at the rate of Rs. 350 per mensem for the period from July, 1956, to January, 1958, as claimed by him. Another argument which I may consider while dealing with this issue is that Rs. 750 could not be set off by Shri Suri against the contribution due from him on account of the unpaid call of Rs. 1'50 nP. per share. According to annexur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by their Lordships of the Privy Council in Hansraj Gupta v. Dekra Dun Mussoorie Electric Tramway Co. Ltd. [1933] 3 Comp. Cas. 207 , and in a case in which the contributory of a company in compulsory or voluntary liquidation, would, or might, but for the liquidation, have an accrued legal right to set off a debt due to him from the company against a debt due by him to the company (other than in respect of calls on shares), the court exercising jurisdiction in the winding up ought to refuse an application by the official liquidators or liquidator as the case may be under section 186, Companies Act, and leave the official liquidators or liquidator to sue the contributory in the ordinary course; and, in particular, whether the application of the official liquidator of the Benares Bank Ltd., in this present case, ought to be so refused. Distinguishing the decision in In re Overend Gurney Co. [1866] LR 1 Ch App 528 referred to above, and other cases deciding the same principle, the Full Bench observed: "The decisions in these cases however do not touch the question which we have to decide. These decisions establish the principle that in a case of a call upon a contributory in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground. I will treat this claim as duly proved especially when not a single respondent has come forward to make a statement in this court and has led no other evidence either in support of their case or in rebuttal of the case as set out by the petitioner. The result of the above discussion is that the claim of Shri Jai Krishnan Suri, managing agent and director, of Rs. 6,47376 nP. is reduced as indicated above. The sum of Rs. 750 which is claimed by him by way of set-off on account of his contribution for the unpaid call of Rs. 150 nP. per share is also rejected. He must pay this call like any other contributory. The next question is whether the call of Rs. 1.50 nP per share is justified in the circumstances of the case. It is a wise rule that in making a call the court may take into consideration the probability that some of the contributories may partly or wholly fail to pay the call. I have reduced the claim of Shri Suri in respect of his remuneration and I have allowed him at the rate of Rs. 175 per mensem instead of Rs. 350 per mensem as claimed by him for the period specified in his claim. I have also disallowed him set-off on account of the amount of the second call ..... X X X X Extracts X X X X X X X X Extracts X X X X
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