9911796707
TMI Blog1964 (11) TMI 44X X X X Extracts X X X X X X X X Extracts X X X X ..... hree buses by the Eluru Motor Transport Ltd. (hereinafter referred to as the company) to the respondent and to direct the latter to deliver them to him. The company owned a number of stage carriages operating on the various routes in the State. In or about the year 1953, the financial position of the company was unsound and several of its creditors were pressing for the repayment of dues. One such creditor was the respondent, who brought O. S. No. 39 of 1953 for recovering a sum of Rs. 57,209-4-3 on the foot of a promissory note for Rs. 46,559-3-0 executed on 31st October, 1951. Pending the suit, he applied for attachment before judgment of all the buses belonging to the company. When this petition was filed, the company came to terms wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) M. D. W. 1050 (Eluru to Polavaram Express Service), (2) M.D.W. 1051 (Eluru to Polavaram Express Service), (3) M. S. C. 9448 (Ellu to Allipalli) towards the full discharge of the amounts due to him and the company, and the said V. R. G. Venkataratnam shall immediately apply for the transfers of the C. G. permits of the buses in his favour and hand over the buses to him on 1st December, 1953, with the current fitness certificates. (2) When the buses are so handed over and the transfers are effected the said V. R. G. Venkataratnam will file a memo, of full satisfaction for the decree amount in the District Court, West Godavari, in the said O. S. No. 39 of 1953. (3) The company and V. R. G. Venkataratnam will both apply for transfers in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days thereafter, the company went into liquidation on a petition filed on the Original Side of the High Court, being O. P. No. 442 of 1953. Subsequently, these liquidation proceedings were transferred to the District Court, West Godavari, and numbered as O. P. No. 67 of 1954 and the official liquidator of the district was appointed the liquidator. Some time later, the liquidator called upon the respondent to show as to how and under what title he came into possession of the buses. The respondent sent his explanation. Thereupon the liquidator thought that the transfer of the buses to the respondent amounted to a fraudulent preference and that, consequently, the respondent could not get the buses. Conformably to this view he required the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... make a transfer of some property of his in favour of one of the creditors that decides the issue whether the transfer amounts to fraudulent preference or not. The onus is upon the person who impugns a transaction as being a fraudulent preference to make it out and not for the alienee, to disprove that it is a fraudulent preference. It is for this reason that the argument was advanced that the company did not owe so much as Rs. 57,000 on the date when the suit was instituted. But the learned counsel is unable to tell us as to what amount was due to the respondent. He contents himself with saying that it was a matter for the liquidator to decide as and when a claim is preferred before him. We cannot assent to this contention for the reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that, in the predicament in which the company found itself at the relevant time, persons in charge of the management thought that it is profitable to discharge the debts by allotting some of the buses to the creditors. Be that as it may, we are not satisfied that the transaction in question was a fraudulent preference. At any rate, the appellant had not succeeded in discharging the onus that lay on him, viz ., that the company did not owe as much as Rs. 57,000 to the respondent. It is also not unworthy of remark that the challenge to this transaction was not that the money claimed was not due and payable to the respondent but that it amounted to fraudulent preference. In these circumstances, we are not put to the necessity of deciding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , that person may apply to the Court, and the Court may confirm, reverse or modify the act or decision complained of, and make such order as it thinks just in the circumstances." We have now to turn to section 179 of the Act of 1913 (analogous to section 457 of the Act of 1956). That section, in so far as it is of immediate relevancy, recites : "179. The Official Liquidator shall have power, with the sanction of the Court, to do the following things. . . . . . ( i ) to do all such other things as may be necessary for winding up the affairs of the company and distributing its assets." We have not set out the other clauses 'of that section as it is not the case of the appellant that the order of the official liquidator comes within th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
