9911796707
TMI Blog2005 (8) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... terest at the rate of 24 per cent per annum from 7-9-1999 to 11-11-2002, amounting to Rs. 12,90,677 aggregating to Rs. 20,72,989 with subsequent interest on balance of principal amounts of Rs. 50,000 and Rs. 2,49,312 from 8-11-2002, till the date of realisation ; ( b )to permit the official liquidator to sell the mortgaged property as per mortgage deed. In the event of non-payment of the amount due within ninety days from the date of order of the Hon ble High Court, permit the official liquidator to adjust the sale proceeds of the property against the decretal amount and further interest; and ( c )to order for payment of costs. 2. In the report of the official liquidator filed in support of the application, it is stated that on a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Based on the said order, the Official Liquidator is stated to have issued a notice to the respondents, directing them to repay the amounts payable to the company in liquidation. The first respondent in her reply dated 17-9-2002, while admitting her liability towards the amount borrowed under account No. HO-264, denied the liability in respect of the loan under account No. HO-265. 5. It was in the abovestated circumstances, the respondents were shown as debtors in respect of account Nos. HO-264 and HO-265 and since they failed to discharge the loan amounts even after the issuance of demand notice, the application came to be filed under section 446(2) of the Companies Act. 6. On a perusal of the back records of the present applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were directed to pay the said amount by 11-11-2003, by cash and failing which, it was stated that coercive action would be taken to recover the money. Thereafter, since the respondents failed to pay the said liability as directed above, non-bailable warrants were issued against the respondents which were also executed. 8. Ultimately, this Court passed an order dated 25-5-2005, which reads as under : "The claim of the administrator is yet to be adjudicated on merits. It is no doubt true that this application was earlier before a number of judges of this Court. I find from those orders that the parties to that application were only negotiating on the claim and in that context, the respective learned judges were directing the debtors to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r side. After recording the evidence, the matter was placed before this Court on 23-8-2005. 10. The official liquidator and the learned administrator, after referring to exhibit A1 mortgage deed, exhibit A2 promissory note, exhibits A3 and A4 ledger entries, exhibit A5 receipts issued by the first respondent for the payment of loan amount of Rs. 50,000 and Rs. 2,50,000 on 5-10-1995, and 17-12-1995, respectively, exhibit A6 letter of ICICI Bank confirming the encashment of cheque No. 782248, dated 5-10-1995, for Rs. 50,000 and cheque No. 782249, dated 17-12-1995, for Rs. 2,50,000 respectively in favour of the first respondent, exhibit A7 letter of the first respondent confirming the deposit of title deeds, exhibit A8 letter of lien dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uidation. Therefore, the plea that the respondents are not liable to pay any sum to the company in liquidation is not true and the same has not been proved. On the other hand, the signatures found in exhibits A1, A2, A5, A7, A8 and A9 are not in dispute. The said documents read along with the oral evidence of PW1 cumulatively establish the liability of the first respondent as debtor and the second respondent as surety to the company in liquidation. In such circumstances, in the light of the overwhelming oral and documentary evidence placed before this Court, it will have to be held that the debt due to the company in liquidation by the respondents as claimed in the application is established and accordingly, the respondents are liable to di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a winding up order has been made or a provisional liquidator has been appointed, the liquidator or the provisional liquidator as the case may be should take into custody or under his control of the properties, effects and actionable claims to which the company is or appears to be entitled. Under section 457(1)( e ), it is prescribed that the liquidator of a winding up company shall have a power to do all such other things as may be necessary for winding up the affairs of the company and distributing its assets. 13. Thus, a conjoint reading of the above referred to provisions, makes it amply clear that the object of a winding up proceedings is to ensure the derivation and accumulation of all the wealth of the company in liquidation by e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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