9911796707
TMI Blog1978 (8) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... filing CA. No. 137 of 1974. The facts alleged in the application are as follows : M/s. Liberty Finance ( P .) Ltd. (now in liquidation and hereinafter referred to as "the company") was carrying on the business of receiving deposits from the public and investing the same by financing the purchases of vehicles by individuals on the basis of hire-purchase agreements. The company financed, the purchase of a Tata Mercedes, Benz by respondent No. 1 on the basis of the hire-purchase agreement. Respondents Nos. 2 and 3 were guarantors of the due performance of the agreement by respondent No. 1 and they also signed the hire-purchase agreement in favour of the company. They also signed guarantor's proposal forms in respect of the above transaction. As per the accounts of respondent No. 1 with the company, the amount payable by the respondent was Rs. 16,640 repayable in one instalment of Rs. 701 followed by 23 equal instalments of Rs. 693. The first instalment was payable on or before 7th September, 1964, and the subsequent instalments were payable on the 7th of each and every succeeding month. In case of default of payment the respondents were also liable to pay interest at 2% per mensem o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the payment of the balance sum of Rs. 10,000 the company got various documents including the alleged hire purchase agreement, signed in blank by the respondents. As the vehicle was of 1955-1956 model/it could not be plied with profit as the cost of wear and tear was more than its earnings. The company, however, seized the vehicle after about a year or so after it was let to respondent No. 1 and transferred it to some one else, having got the hire purchase endorsement in the registration book of the vehicle cancelled by the R.T.O., Agra. The claim of the official liquidator is unfounded and no amount whatsoever is payable by any of the respondents in respect of the vehicle in question. The accounts relied upon by the official liquidator are altogether false and fabricated. The entries made by the company in its books of accounts are altogether false. In any case, the claim of the company is time barred." As stated earlier the applicant filed a rejoinder on 2nd May, 1977 and thereafter followed it by C.A. No. 518/77. By the latter application he prayed that the delay in the filing of C.A. No. 137/74 may be condoned under section 5 of the Limitation Act. The grounds on which the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 978 Delhi 167 (confirming the decision in Offl. Liq. of R.C. Abrol and Co. P. Ltd. v. A.R. Chadha and Co. reported in [1973] 43 Comp. Cas. 376 (Delhi) and the decision of Anand J., in Official Liquidator, Security Finance P. Ltd. v. Pushpa Wati Puri [1978] 48 Comp. Cas. 385 (Delhi). The effect of these decisions can be summarised as follows : ( a )The expression "any claim" occurring in section 446(2)( b ) means a claim which is legally enforceable. A claim which had become time barred on the date of presentation of the winding-tip petition cannot be described as a legally enforceable claim and the provisions of section 446(2)( b ) do not enable the official liquidator to receive claims which had been quietened by the lapse of time. ( b )Where there is an enforceable claim as on the date of the winding-up petition, the official liquidator can make an application under section 446(2). Such an application will attract the provisions of art. 137 of the Limitation Act, 1963, in view of the decision of the Supreme Court in the case of Kerala State Electricity Board v. T.P. Kunhaliumma, AIR 1977 SC 282, ( c )The right of the official liquidator to make an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court was no doubt rendered on 29th October, 1976, but it has been reported in the 1977 parts of A.I.R. Reading the rejoinder filed by the official liquidator on 2nd May, 1977, and the contents of application, C.A. No. 518/77, which was filed on 19th July, 1977, together, it is clear that the awareness that art. 137 would apply also to petitions under section 446 came to the applicant only about this time. The question is whether these circumstances would justify the condonation of delay in the filing of the application. The issue has been touched upon by Anand J. in the decision in Offl. Liq., Security Finance P. Ltd. v. Pushpa Wati Puri [1978] 48 Comp. Cas. 385, 395 (Delhi) earlier referred to : "The first of these subsidiary questions is as to whether in the rather nebulous state of the law of limitation in relation to proceedings under the Act even after the Act of 1963 in view of the decision of the Supreme Court in the case of Town Municipal Council, Athani [1969] 36 FJR 177 ; AIR 1969 SC 1335, and until the controversy was laid to rest in the decision of the Supreme Court in Kerala State Electricity Board's case [1976] 4 SCC 634; AIR 1977 SC 282, it could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent cause within the meaning of the section to admit this petition beyond the period of limitation prescribed in art. 137 of the Limitation Act. The second issue is, therefore, decided in favour of the applicant. In view of my conclusion on the above issues, it is not necessary to consider the argument of Shri Shastry that, since it is a claim for recovery of a vehicle given on hire-purchase, no period of limitation will start running until the respondents refuse to re-deliver the vehicle, relying on a decision of Kapur J. in C.A. No. 670/73. I, therefore, turn to the issues regarding the merits of the claim. The main objection taken on behalf of the respondents is that the hire-purchase agreement which is annexure "A" to the application has been signed in blank. The annexure in question has not been filled in though it has been signed by all the respondents. However, in view of the oral evidence given in this case, this defect does not affect the merits of the applicant's claim. The former managing director of the company, Shiv Dayal, stated that this was not the original of the hire-purchase agreement which had been completed and signed by every one, whereas annexure "A-1" is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the amount, if any, which is due to the company from the respondents or any of them. In the circumstances above referred to there is no question of passing an order for the recovery of the vehicle as the respondents deny that the vehicle is not with them. I have found that it has not been shown to have been delivered back to the applicant-company. It is now untraceable. The "appropriate order to pass is, therefore, one for recovery of the amounts due to the company in respect of this transaction. I have held earlier that there is no substance in the contention that the accounts of the company were fabricated or false. At the same time, there is an onus on the applicant to prove that a sum of Rs. 16,640 had been advanced to the principal debtor in connection with the hire purchase of the truck. Apart from the opening entry in the statement of account (annexure "B") on August 7, 1974, to the effect that an amount of Rs. 16,640 was due from the respondents, there is no indication regarding the date or mode by which the amount was advanced to the respondent. No evidence such as a cheque counter-foil or receipt or the like has been produced. Respondent No. 2 has stated that the actual ..... X X X X Extracts X X X X X X X X Extracts X X X X
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