TMI Blog1967 (1) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... kshmi Oil Mills and Industries Limited (in members' voluntary liquidation). Only the first respondent has filed a counter-affidavit and respondents Nos. 2 to 5 do not appear before me. The first respondent, in his counter-affidavit, admits that the claim is not barred by limitation as it is one arising in the course of liquidation proceedings, but objects to the claim for interest from October 30, 1956, at the rate of 9 per cent, per annum. He states that under the Companies Act (Act 1 of 1956), interest can be claimed only from the date on which this court directs him to pay the same, that too at 4 per cent. He also alleges that the company mortgaged its assets including the unpaid call moneys by a mortgage deed dated February 24, 1950, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be put into this court with liberty to her to draw out the same after such deposit. To the counter-affidavit filed by the first respondent and the third party mortgagee, the voluntary liquidator filed reply affidavits in which he categorically states that he has no objection to collect the unpaid call moneys and deposit the same in this court and the third-party mortgagee being paid out the same, so that the mortgagee may give credit to the same against the decree amount in O.S. No. 38 of 1958 on the file of the court of the subordinate judge of Chinglepet and enter up part satisfaction. The applicant also states in answer to the counter affidavit of the first respondent, that he is entitled to interest at 9 per cent, per annum on the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which support the view that notwithstanding the bar of limitation under the common law, the liquidator can claim such unpaid call moneys after the winding up of the company by adopting the prescribed process under the Companies Act The only issue for determination, therefore, is whether the liquidator is entitled to claim interest. In the view that I intend taking in the matter, the question as to what should be the rate of interest will not arise. Though the first respondent made a pragmatic assertion that he is not liable to pay interest, no further assistance was given by him. Sri G. Vasantha Pai appearing for the third party mortgagee, however, volunteered to render assistance to this court on this subject and I acknowledge my thank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the payment order until realisation but we are clear that it cannot include interest prior to that time." Section 156 of the old Act corresponds to section 426 of the new Act. Regulation 16 cannot, therefore, help the applicant. In Mahomed Akbar Abdulla Fazcdbhoy v. Associated Banking Corporation of India Ltd. [1950] 20 Comp. Cas. 325, Chagla C.J. and Coyajee J. are of the view that, irrespective of the bar of limitation, a liquidator is at liberty to approach the company judge and, after satisfying him that the call should be enforced by a call made by the court in the winding up proceedings, can obtain a direction for payment from court, which direction compels the defaulting shareholder as a contributory to pay such unpaid cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On a reading of this Form No. 103, read with rule 239 it is clear that what was originally a contractual liability becomes a statutory liability only after an order to that effect is made by this court. The relevant portion of Form No. 103 runs as follows: "IT IS ORDERED that leave be given to the official liquidator to make a call of Rs per share on all the contributories of the said company And it is ordered that each contributory do, on or before the .day of .19 pay to the official liquidator ..the amount due from such contributory in respect of such call." It is only after such an order is made by the company court that the official liquidator has the power to enforce the call and ask for an order for paym ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st would be payable on a debt which is barred and which is not enforceable in the eye of law ; but the principal alone would be due by virtue of the supervening winding up proceedings. It will lead to an absurdity if the claim of the liquidator for interest, as in this case were to be upheld. In order to harmoniously interpret the intention 01 the legislature in creating a new statutory liability, it is but proper and indeed compelling that interest should be allowed only from the date when the order for call is issued to the liquidator. I, therefore, direct that that the liquidator be entitled to make a call for the payment of the unpaid call money from all the respondents to this application together with interest at 4 per cent, per ann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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