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TMI Blog2012 (6) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... ted - C.P. NO. 2 OF 1965 C.A. NO. 491 OF 2009 - - - Dated:- 20-7-2011 - ASHOKE KUMAR DASADHIKARI, J. A.C. Kar for the Petitioner. Debojyoti Dutta and M. Sen for the Respondent. JUDGMENT 1. This application has been filed by one Smt. Anupam Khosla, one of the daughter of Banshilal Dhiman, since deceased and grand-daughter of Late Dhram Chand Dhiman. It was contended that D.C. Dhiman Bros. Limited ('the company') was directed to be wound up by an order dated 7-9-1965 and thereafter the Official Liquidator took out an application for misfeasance against Dharam Chand Dhiman, Kissen Chand Dhiman, Meher Chand Dhiman and Keher Chand Dhiman together with Banshilal Dhiman, son of Dharam Chand Dhiman. In the said proceeding an ex parte decree was passed on 7-2-1974 for a principal sum of Rs. 14,17,948 together with interest thereon at the rate of 6 per cent per annum from 7-11-1965 until repayment. 2. On 5-8-1979, the Official Liquidator filed an application under Order XXI Rule 41 of the Code of Civil Procedure for examination of the judgment-debtors. On the said application an order was passed on 5-12-1979 whereby the said application was disposed of dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record being the letter dated 27th November, 1979 addressed to Mr. P.K. Sen Barat. These properties would be included in the order as a Schedule on which the Receiver is appointed. The Official Liquidator is appointed Receiver for the purpose of sale in terms of this order. The costs of the Official Liquidator is assessed at 50 G.M. to be realised out of the assets in his hand. The Official Liquidator as Receiver will take possession of the said properties forthwith on a signed copy of the minutes." 4. The Official Liquidator has sold the assets of the judgment debtors under the misfeasance decree. It was claimed that the decree passed by this Court had been satisfied upon payment of the decretal dues. It was submitted that at the time of determination of decretal dues the rent realized by the Official Liquidator have not been accounted for nor the said recovered amount was disclosed. It was an obligation of the Official Liquidator to show of the rent he has collected. It was further claimed that various payment which was shown as due in the balance sheet dated 31-3-1958 had already been paid and, therefore, those amounts specially amounts noted on liability side against Ompr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 imposes upon the latter person, the liability to make compensation to the former in respect of or to restore, the thing so done or delivered. In appreciating the scope and effect of the provisions of this section is would be useful to illustrate how this section would operate. If a person delivers something to another it would be open to the later person to refuse to accept the thing or to return it; in that case section 70 would not come into operation. Similarly, if a person does something for another it would be open to the latter person not to accept what has been done by the former; in that case again section 70 would not apply. In other words, the person said to be made liable under section 70 always has the option not to accept the thing or to return it. It is only where he voluntarily accepts the thing or enjoys the work done that the liability under section 70 arises. Taking the facts in the case before us, after the respondent constructed the warehouse, for instance, it was open to the appellant to refuse to accept the said warehouse and to have the benefit of it. It could have called upon the respondent to demolish the said warehouse and take away the materials used by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the applicant have never challenged the decree or misfeasance decree passed by this Court and, therefore, the executing Court cannot go beyond the decree. And cannot also reopen the same. It was submitted that the two claimants being O.P. Mohta and Mohta Brothers being the two claimants have not come before this Court or submitted that they were paid. Therefore, the claim of the applicant should not be entertained at all. It was submitted that after payment of 62 lakhs all properties were released so the submissions made in Paragraph 16 of the petition is redundant or obsolite. It is practically an abuse of process of the Court. This Hon'ble Court should not pass any order on the said petition. It was submitted that the rent which was realized amounting to Rs. 34,650 is lying of the Official Liquidator. Upon payment of the secure creditors if any amount is left in that event the same would be returned to the applicant. The learned Counsel for the Official Liquidator also referred the Company Court Rules 291 and 292 and section 469 sub-section (3) of the Companies Act, 1956 in support of his contention. It was also submitted by learned Counsel for the Official Liquidator ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tached in the execution proceedings. The applicants say that they do not insist on any division and in CA No. 51 of 2010 and CA No. 52 of 2010 the applicants are desirous of making the payment. Upon this order being made, the applicants in CA No. 51 of 2010 and CA No. 52 of 2010 seek time till April 7, 2010 to make the payment. In view of such submission, the time to make payment of Rs. 62 lakh is extended till April 7, 2010. CA No. 683 of 2008 and CA No. 51 of 2010 and CA No. 52 of 2010 are disposed of without any order as to costs. The Official Liquidator will not make any payment on account on the security expenses said to have been incurred in guarding the Punjab property without disclosing fullest particulars thereof to Court and without obtaining previous leave of the Court." 6. Heard the submissions made by the respective Counsel appearing for the parties and considered the submissions made by them. In my opinion this Court have no authority and/or power to reopen the decree. The decree has become final and binding upon all the parties. In my opinion section 47 of the Presidency Insolvency Act do not authorize this Court to reopen decree nor give any authority to a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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