9911796707
TMI Blog1994 (4) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... uti Limited (Acquisition and Transfer of Undertakings) Act, 1980, along with all rights, title and interest. The account books of the company showed a balance of Rs. 4,556.62 recoverable from the respondent. The official liquidator sent a registered notice calling upon the respondent to pay the amount with interest at the rate of 12 per cent. per annum from the date the amount fell due. The amount was not paid with the result that a petition for recovery was filed in this court. In the written statement filed on behalf of the respondent, it was submitted that a sum of Rs. 22,617.66 was due to it from the company in liquidation. As the amount had not been paid, set-off without payment of court fee was pleaded. On the pleadings of the parties, the following issues were framed: (1)What is the effect of non-issuance of 'C forms by the petitioner-company to the respondent ? OPD. (2)Is the official liquidator bound by the respondent's liabilities of the company before the passing of the winding up order ? OPD. (3)Whether the claim of the petitioner is barred by limitation ? OPD. (4)Is the respondent entitled to an amount of Rs. 27,174.28 by way of set off ? (5)Relief. An ex parte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ples of set off can be defined as the extinction of debts of which two persons are reciprocally debtors to one another, by the credits of which they are reciprocally creditors to one another. The claim of set off is distinguishable from the plea of adjustment. The distinction between the two was noticed in Gupta Private Loan Committee v. Moti Ram, AIR 1984 J & K 38, and it was held (page 39): "One of the basic factors which has to be taken into consideration while determining whether a plea raised in defence is a plea of set-off or of payment by adjustment, is to find out as to whether a separate action could be maintained by the defendant on the basis of the claim made by him. In case a separate claim could be maintained by him and put forward in a separate suit, then the plea would be a plea of set off and court-fee will have to be paid on the claim. On the other hand, if adjustment had been made prior to the filing of the suit, no court-fee would be payable on the amount, which stood adjusted prior to the institution of the suit, as the plea in that case would be a plea of adjustment by payment. Under Schedule 1, article 1 of the Court-fees Act, ad valorem court fee is payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 468 of the Act and is filed by the company. In Ram Chand Puri v. Lahore Enamelling and Stamping Co. Ltd. [1960] 30 Comp Cas 515 ; [1961] ILR 1 Punj 7 their Lordships considered the provisions of the Indian Companies Act and the Provincial Insolvency Act and found on facts that the claim of the creditor was within limitation from the date of the winding up of the company and held that the claim of the said creditor in respect of Rs. 2,359.7-9 has been proved. It was found that there was a close analogy between the insolvency law and the law under the Companies Act by virtue of the provisions of the then section 29 of the Companies Act. It was further held that under the insolvency law the debt which is payable on the date of the filing of the application for insolvency is deemed to be a provable debt within the meaning of section 34(2) of the Insolvency Act. The creditor in that case is not shown to have preferred his claim by way of suit but the matter was adjudicated on a petition by the official liquidator for the settlement of the list of creditors. In Official Liquidator v. James Edvin, AIR 1983 Kar 24, the Karnataka High Court considered the scope of section 46 of the Provin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im is not legally recoverable by lapse of time." The law of limitation was held no bar for the liquidator to satisfy the claim of set-off of the creditor as the liquidator was held not to be a court but the representative of the party in insolvency. In order to prefer a claim of set-off the party preferring such a claim is under an obligation to prove that the amount was legally recoverable. An amount which is barred by limitation cannot be held to be an amount recoverable. In Aiyappan Pillai v. Narayanan, AIR 1956 TC 239, it was held that a debt barred by limitation is not legally recoverable and the defendant cannot be permitted to claim a set-off of such barred debts. For preferring a claim of set-off under Order 8, rule 6 of the Code an obligation is cast upon a party claiming such relief to pay ad-valorem court-fee as would be payable on a plaint claiming the same relief. The argument of learned counsel for the appellant that a claim of set-off cannot be preferred in proceedings initiated at the instance of a company which is wound up cannot be accepted-' Reliance of learned counsel in this behalf on D. Sundaravaradan v. R. Narasimhachari [1940] 10 Comp Cas 87 ; AIR 1940 Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssal of the petition of the company. The learned company judge was not justified to hold that the respondent can legtimately claim set-off in this petition. The finding of the learned company judge on issues Nos. 1, 2 and 4 is liable to be set aside. The onus of proof of issue No. 1 was upon the respondent-company and to discharge the onus they are shown to have produced R. P. Mukheeja, Administrative Officer, as R.W-1. in the case. The said witness nowhere is shown to have stated that the appellant-company was under an obligation to supply 'C' forms or that on account of non-supply of 'C' forms with respect to Bill No. 39/44, dated February 28, 1974, No. 116/44 dated June 17, 1974, No. 14/49 dated July 7, 1974, No. 261/44 dated December 30, 1975, No. 33/44 dated February 22, 1974 and No. 9/49 dated April 30, 1974, any amount was paid for and on behalf of the appellant-company with their consent either expressed or implied. There was, therefore, no justification for deciding issue No. 1 in favour of the respondent-company. The finding on issue No. 1 is reversed and the issue is decided against the respondent-company. Learned counsel appearing for the respondents has not shown any ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
