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TMI Blog2002 (4) TMI 817X X X X Extracts X X X X X X X X Extracts X X X X ..... e of 18 per cent per annum and/or in the alternative direct the Chief Presidency Magistrate/District Magistrate of Mumbai for recovery of the amount aforestated along with interest at the rate of 18 per cent per annum from the respondent-company and deliver it to the official liquidator. 2. The respondent, Maharashtra State Electricity Board, is a trade debtor of the company in liquidation. The ex-directors of the company in liquidation submitted their statement of affairs on September 13, 1994. In Schedule II title as "trade debtors" enclosed with the statement of affairs the ex-directors have shown the name of the respondent which is appearing at No. 11 and a debt has been shown to be recovered from it to the tune of Rs. 20,84,824. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recovered by proving the claim filed before the official liquidator as per law. The refusal to make payment, which is due to the company is not permissible in law on the pretext of the alleged dues. It is further averred that apparently no amount is due to be recovered from the company in liquidation by the respondent-Board inasmuch as admittedly the suit for recovery is still pending before the Bombay High Court. Making reference to rule 270 of the Companies (Court) Rules, 1959, it is submitted that in a winding up no claim by the company against any person shall be compromised or abandoned without the sanction of the court upon notice to such person as the court may direct. In view of this position of law it is stated that the plea of hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02. The matter is placed on Board today. Not only is the reply not filed by the respondent-Board but nobody is also present on its behalf. 5. Heard learned counsel for the applicant, perused the memo of application and its enclosures. More than sufficient opportunity was available to the respondent-Board, if it would have really been desirous to oppose the application the reply would have been filed, but this opportunity has not been availed of. Not only this nobody is present on behalf of the respondent-Board even to make any oral submission also. 6. I find sufficient merit in the averments made in the application and arguments advanced by learned counsel for the applicant that merely because the board has filed a suit for recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e suit would have been filed by the respondent-Board, but it is undisputedly not decreed. Leaving apart it, it cannot be proceeded with further without leave of the court in view of section 446(1) of the Companies Act, 1956, the claim has to be filed before the Official Liquidator by the Board. After winding up of the company, whatever the dues are against the company in liquidation, no person can claim thereof unless his claim is presented before the Official Liquidator and it has been scrutinised and adjudicated upon and then only it becomes recoverable. The non-applicant even has not lodged the claim what to say to prove the same and it is not recoverable from the applicant. The application has not been contested by the respondent-Board ..... X X X X Extracts X X X X X X X X Extracts X X X X
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