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TMI Blog2002 (8) TMI 778X X X X Extracts X X X X X X X X Extracts X X X X ..... hereafter till the date of payment may be passed in favour of the applicant Petitioner and the Respondents may be held liable for payment jointly and severally. ( ii )In the alternative the application may kindly be tried under section 446 of the Companies Act, 1956 and a decree for the outstanding amount may be passed. ( iii )Any other appropriate order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be passed in favour of the applicant. 2. In the reply to the application the respondent has admitted that he took a loan of Rs. 1,96,000 for purchase of an HMT Tractor and a Trolley from the company (in liquidation) in the month of March 1994. It is submitted that for this purchase of the tractor and trolley a sum of Rs. 48,000 was paid by the respondent as margin money to the company (in liquidation) The company (in liquidation) also recovered a sum of Rs. 3,920 from the respondent on 15-3-1994 as service charges, but no service was effected. The next averment made is that the Official Liquidator in the application has not shown the payments made by the respondent to the company in liquidation. The claim filed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order dated 14-7-1995 and the Official Liquidator is entitled to recover the amount of debt from the respondent. Re the plea taken by the respondent that the interest is not be payable it is stated that as per the documents provided by Shri Sajjan Singh Rathore in the form of Register, the rate of interest has been mentioned as 12% p.a. On the loan amount disbursed to the respondent interest @ 12% p.a. was payable and is chargeable till realisation of the amount and accordingly upto September, 1999 a sum of Rs. 1,29,360 was due and payable towards interest. So far as defence taken regarding the sum claimed in the MACT case, it is urged that the respondent being the owner of the vehicle is liable for any act or negligence and there is no question of any liability of the company (in liquidation) to register the vehicle. The respondent has not filed any further pleadings to the rejoinder filed by the Official Liquidator. The following points for consideration arise in the matter : (1)Whether the respondent is entitled for set off a sum of Rs. 3,920 against the outstanding loan amount; (2)Whether the application is barred by limitation; (3)The respondent is not a defaulte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent has admitted that the loan has been taken by him from the company. What he stated that Rs. 48,000 has been paid as margin money and this has been accepted by the official liquidator and to this extent set off has been given in the claim raised or made in the application. Thus, it is the case of admission of this claim of official liquidator and accordingly under section 477(5) of the Act an order for payment thereof by the respondent can be made by the court and that order as per provisions of sub-section (7) shall be executable as decreed of Civil Court under the Code of Civil Procedure. This application is also filed under section 446 of the Act. Sub-section (2) of section 446 of the Act reads as under : "(2) The court which is winding up the company shall, notwithstanding anything contained in any other law for the time being in force, have jurisdiction to entertain, or dispose of ( a )any suit or proceeding by or against the company; ( b )any claim made by or against the company (including claims by or against any of its branches in India); ( c )any application made under section 391 by or in respect of the company; ( d )any question of priorities o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order is passed the respondent could have paid this amount to the official liquidator. The respondent has not paid single pie towards this loan account from April 1994 to July 1995. Leaving apart this, it is a dishonest plea. Under sections 446 and 477 of the Act this amount is recoverable by the official liquidator from the respondent. This point is without any merit and substance. 9. Learned counsel for the respondent has failed to show any agreement or any other evidence on record that it was the obligation of the company to take insurance of the tractor and trolley. Not only this he failed to show any agreement in between the company and the respondent where this obligation has been taken by the company and further the provision therein that for non-fulfilment thereof what are the liabilities fall upon the owner of the vehicle of compensation in the MACT case are to be reimbursed by on the company. These are contractual matters and unless it is agreed upon no corresponding liability or obligation on the parties are there. I find sufficient merit in the contention of the learned counsel for the applicant that the respondent being owner of the vehicle, it is his legal duty t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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