9911796707
TMI Blog1972 (2) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ed this claim petition on behalf of the company in his official capacity. 2. The claim is that on December 27, 1962 a sum of ₹ 6,000/-was lent by the company to R. L. Soni respondent and the same was repayable with interest at 12 percent per annum which is the usual rate at which the company charged interest on loans granted by it. According to the claim petition, part payment of ₹ 594/-and ₹ 500/-were made in cash by the respondent towards principal interest in account on April 12, 1965 and May 21, 1966 respectively. Another sum of ₹ 1,000/-is said to have been paid to the company by cheque Exhibit P.7 on June 15, 1966, but the said cheque was dishonoured. 3. The claim has been contested by the respondent. Accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in question was paid to the respondent as loan? (3) If the principal is due to the company, what interest, if any, is the company entitled to? (4) Relief. Issue No. (1): 5. In view of the provisions of Section 458A of the Companies Act, this claim petition has been filed within time after June 9, 1969, the date of presentation of the winding up petition. It remains to be seen whether the claim was within time on that date i.e. on June 9, 1969 or not. Even if the earlier payments of ₹ 594/-and ₹ 500/-are assumed to have been made by the respondent the claim would not have been within time on the date of presentation of the winding up petition. It is conceded by Mr. Kuldip Singh Keer, the learned counsel for the Official ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signature of G. S. Bakhshi, partner of that firm. The cheque is dated June 15, 1966. It is not signed by the respondent, without going into the question of the effect of the cheque being not signed by the respondent, but by the partner of his, and without going into the question of the effect of the cheque not being drawn by the respondent on his account, but having been drawn by his partner on the account of the firm of which the respondent was a partner, it appears to me that payment by the said cheque would not save limitation under Section 19 of the Limitation Act as the cheque was admittedly dishonoured on presentation to the bankers of Messrs. Sonico Distributors on whom the cheque had been drawn. Exhibit P.8 is the memorandum of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. It was observed that there is no acknowledgment of liability merely by giving a cheque which is dishonoured on presentation. The view of the Bombay High Court was followed by learned Single Judge of the Patna High Court in Arjunlal Dhanji Rathod v. Dayaram Premji Padhiar. AIR 1971 Pat 278. No authority to the contrary has been cited before me. I am in agreement with the view of the Division Bench of the Bombay High Court and following the same I hold that this claim has not been filed within time as it is not saved by the handing over of the cheque Exhibit P.7 which was dishonoured on presentation. Issue No. (2): 6. Though this is a hotly contested issue. I am of the view that the company has been able to prove it. Leaving out of con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany on that amount. This clearly shows that it was a loan. This view is further strengthened by Anup Kaur's letter Exhibit P.17 addressed to the Official Liquidator after the company went into liquidation claiming the total sum of ₹ 8,000/-representing her deposit with the company. Thirdly, the statement of Sardari Lal Khanna, accountant of the respondent was not at all convincing. The real book of account which would have helped in the decision of the matter was held back by him or by the respondent. For all these reasons. I hold issue No. (2) to have been proved. Issue No. (3): 7. Interest at the rate of 12 percent per annum has been claimed only on the basis of the customary rate at which interest was being charged by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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