Official Liquidator of the Mysore Acetate and Chemicals Co. Ltd. (In Liquidation) vs Passari Cellulose Ltd.

Ram Mohan Reddy, J.—The Company-in-liquidation represented by the Official Liquidator has presented this application u/s 446(2)(b) of the Companies Act, 1956 arraigning as party - respondent the company which is due and payable Rs. 4,35,000 as on 7-11-2003 and being a Trade Debtor, seeks a decree against the respondent for Rs. 4,05,000 and Rs. 2,18,700 towards interest at 18 per cent p.a. from 7-11-2003 to 3-11-2006 and further interest at 6 per cent per annum from the date of petition, that is 3-11-2006.

The petition is opposed by filing Statement of objections dated ''nil filed on 8-7-2007 inter alia contending that in terms of the memorandum of understanding dated 30-8-2000 Annexure-"A", the respondent was due and payable Rs. 6,58,697 to the Company-in-liquidation in full and final settlement of all the claims. According to the respondent, Rs. 2,73,697 was paid by several cheques during the period 31-8-2000 to 31-8-2001 and that a further sum of Rs. 30,000 was paid by three cheques dated 5-11-2005; 8-12-2005 and 31-1-2006 drawn in favour of the Official Liquidator and that having paid in all Rs. 3,03,697 the respondents were due and payable Rs. 3,55,000. It is further stated that the respondent suspended production since February 2004 and the plant is closed and is finding it difficult to continue to pay the balance amount due and hence seeks time to pay the same in equal monthly instalment of Rs. 10,000.

The Official Liquidator examined one witness as PW-1 and marked 10 documents as Exhibits P-l to P-10 while for the respondents, none were examined nor documents produced. This Court, on 28-10-2009, closed the evidence of the respondent and on 29-10-2009, permitted the respondent to produce certificates relating to the encashment of the Demand Drafts as set out in Paragraph 3 of the Statement of objections, in response to which the respondent filed a memo dated 3-2-2010 enclosing photostat copies of receipt vouchers and statements of ICICI Bank.

There being no dispute over the business transaction between the parties, more appropriately in the light of the Memorandum of Understanding Annexure-"A" to the Statement of objections and that the respondent was due and payable Rs. 6,58,697, the onus of establishing that Rs. 2,73,697 was paid to the company-in-liquidation for the period from 31-8-2000 to 31-8-2001 did vest on the respondent. In the absence of relevant material constituting substantial legal evidence of the fact of having made payment to the Company-in-liquidation, it cannot be said that the defence advanced by the respondent of having paid Rs. 2,73,697 out of Rs. 6,58,697 is unacceptable. It is no doubt true that Rs. 10,000 each by way of cheques dated 5-11-2005, 8-12-2005 and 31-1-2006 are encashed by the Official Liquidator and to that extent, deserves to be deducted from out of the monies claimed in the application.

In the result, the application is allowed in part. Respondent is directed to pay Rs. 5,93,700 with interest at 6 per cent per annum from 3-11-2006 onwards up to the date of payment.