1967 (1) TMI 57 - HC - Companies Law

Summary

Issues:
1. Application by members' voluntary liquidator for direction to respondents to pay due amounts.
2. Dispute over interest payment on unpaid calls by respondents.
3. Inclusion of third-party mortgagee in the application.
4. Determination of statutory liability and interest entitlement for the liquidator.

Analysis:
1. The application filed by the members' voluntary liquidator sought direction for respondents to pay the principal amounts due on second and final calls over shares held in a company in liquidation. The first respondent admitted the principal amount but contested the interest claim from October 30, 1956, at 9% per annum, citing Companies Act provisions. Respondents 2 to 5 were ex parte, establishing their liability to contribute to the unpaid call moneys as per the liquidator's affidavit.

2. The main issue revolved around the entitlement of the liquidator to claim interest at 9% from October 30, 1956, or any other date. The court established that the liability for unpaid call moneys, originally contractual, transformed into a statutory obligation under the Indian Companies Act post-winding up. Judicial precedents supported the liquidator's right to claim such moneys even if barred by common law limitations, emphasizing the statutory nature of the debt.

3. The involvement of a third-party mortgagee added complexity, as the mortgagee was impleaded due to claims on company assets and unpaid call moneys. The mortgagee, standing outside winding-up proceedings, sought deposit of collected call moneys into court for credit against a mortgage decree. The liquidator agreed to deposit the funds for the mortgagee's benefit, aligning with the mortgage suit's terms.

4. The court determined that interest on unpaid calls could only be claimed once the court authorized the liquidator to make a call, as per statutory provisions. Interest at 4% per annum was allowed from the court's order date till realization, rejecting the liquidator's claim for interest from an earlier date to maintain statutory coherence. The judgment balanced the liquidator's rights with the mortgagee's interests, directing the use of collected funds to satisfy the mortgage decree in a harmonious legal interpretation.