Official Liquidator of the Mysore Kirloskar Limited (In Liquidation) vs Silicon Shipwright (Private) Limited

Anand Byrareddy, J.—Heard the learned Counsel for the petitioner. The Counsel for the respondent has remained absent. It is noticed that he has consistently remained absent and the matter was adjourned from time to time awaiting his appearance since the Counsel has failed to appear the matter is heard and disposed of on merits. This is an application u/s 446(2)(b) of the Companies Act, 1956 (hereinafter referred to as the ''Act'', for brevity) read with Rules 6 and 9 of the Companies (Court) Rules, 1959. It is contended that M/s. Mysore Kirloskar Limited had been ordered to be wound up by its order dated 1-4-2004 in Company Petition No. 166 of 2001 and connected matters. Company Petition No. 77 of 2000 was presented on 14-3-2000 and the Official Liquidator was appointed as the Liquidator of the company in liquidation. The respondents had trade relationship with the company prior to its liquidation and as per the records maintained by the company and the details handed over by the Ex-directors of the company, it is contended that the respondents were indebted to the company in a sum of Rs. 4,76,599.00 as on 31-3-2000. The claim is based on the extracts of the Statement of Affairs and the ledger extracts. Consequent upon the winding up order, a demand notice is said to have been issued on 27-1-2006, calling upon the respondents to make the payment and there was a reply denying the liability and the amount was not remitted. Therefore, it is claimed that the respondents were jointly and severally liable to pay a sum of Rs. 14,10,733/- with interest and the particulars of which are indicated as follows:

It is contended that the application is in time as the last date of transaction was 31-3-2000 and in terms of Article 137 of the Limitation Act, 1963, the last date to file the claim would be 31-3-2003 and if one year is added in terms of Section 458-A of the Act, the last date would stand again extended to 31-3-2004 and the date of winding up order being dated 1-4-2004, the petition having been presented on 14-3-2000 was well-within time since the time-limit for filing an application stood extended upto 18-4-2008 and hence the prayer. The application was contested and statement of objections was to the effect that the respondent did not owe the company in liquidation, but it was the other way round. It was the company in liquidation which has to pay a sum of Rs. 99,340/- with interest thereon, to the respondent. It is further claimed that the respondent had deposited a sum of Rs. 5,00,000/- by way of a cheque bearing No. 294552 and it was encashed by the company in liquidation towards the purchase of the old and used machinery which was purchased by the respondent. At a meeting held on 9-3-2000, the sale was finalized of the said old and used machinery for a total consideration of Rs. 5,80,320/-. The company in liquidation had accepted the offer and raised an invoice dated 19-10-2000, which was for the balance amount of Rs. 80,320/-, after setting off the advance amount. The respondent, after holding discussions with the company in liquidation, forwarded a demand draft favouring the company in liquidation in a sum of Rs. 1,79,660/-. The demand draft was duly received by the company in liquidation and it was in settlement of the outstanding invoice amount of Rs. 80,320/- and the balance amount of Rs. 99,340/- was towards the consideration of certain other machinery that was purchased.

However, other machinery, namely, BEMCO Hydraulic Press, which was supplied to the respondent, did not meet the specifications and was returned to the company in liquidation under a challan dated 22-6-2000. Therefore, it is contended that it is the company in liquidation which owes the respondent and not the other way round. It is pointed out that if the liability is taken away, the claim, which is inclusive of interest, in a total sum of Rs. 14,10,733/- would not be tenable.

Though the Official Liquidator had thereafter tendered evidence in support of the claim, the respondent, who had filed his statement of objections, did not tender any evidence. It is now pointed out by the learned Counsel for the Official Liquidator that an identical defence was raised by the respondent in yet another matter.

It is further pointed out that the company in liquidation had two units, one at Hubli and the other at Harihar and the transactions, which are referred to by the respondent pertained to Harihar, whereas the present proceedings are in respect of the Hubli Unit. The respondent had raised identical contentions in yet another pending petition and it was negated. This is found to be borne out by the fact that the Company Application No. 1169 of 2007 is with reference to the Harihar Unit, wherein identical contentions had been raised and negated by this Court by its order dated 11-6-2012. Consequently, the present application is allowed, as prayed for. The respondent is held jointly and severally liable to pay the applicant a sum of Rs. 14,10,733/- with interest at 6% from 1-4-2008 till the date of payment, with costs.