TMI Blog1982 (5) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... f prize amount on May 26, 1975. Respondent No. 1 as well as respondent No. 2, Abdul Shukoor, executed a promissory note jointly on May 26, 1975, in favour of the company (in liquidation) promising to pay the amount mentioned therein with interest at 18 per cent. per annum. The second respondent had earlier executed a deed of mortgage by deposit of title deeds in favour of the company on May 22, 1975, mortgaging his property bearing Corporation No. 7/45 situated in South Street Cross, Neelasandra, Civil Station, Bangalore, measuring on the East: 36 feet. West: 36 feet, North: 45 feet and South : 43 feet. The mortgage was for securing payment of Rs. 10,000 with interest thereon at 18 per cent, per annum. A petition was presented in this court on March 1, 1979, for the winding up of the company and this court by an order dated July 13, 1979, ordered the company to be wound up. Before the winding up order was made, by an order dated March 9, 1979, in Company Application No. 53 of 1979, the official liquidator attached to this court was appointed as the provisional liquidator of the company. On December 12, 1979, and February 3, 1981, notices were issued to the respondents by the offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vr. No. 1782 dt. 21-2-75 200 9. Vr. No. 3 dt. 10-4-75 200 4,700 He has also stated that he was made to pay on May 23, 1975, the sum of Rs. 3,000 by the company representing that the entire chit amount had to be repaid forthwith and the second respondent persuaded him to pay the said sum of Rs. 3,000. He has reiterated that he was only a benami subscriber and the real subscriber was the second respondent. In those circumstances, he has denied the accuracy of the claim of the official liquidator for not giving due deductions to the amounts subscribed. He has denied his liability to pay any amount as the amount was a secured loan and as the same should be recovered by proceeding against the property secured. The second respondent has also filed his statement of objections. In the statement of objections, he has averred baldly that he is not aware of the details of the transactions stated by the official liquidator. He, however, admits having signed certain papers at the instance of the first respondent without knowing the contents or purport of the documents. In the statement, he has denied the execution of the mortgage de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions with the first respondent ; that he was not a subscriber in M/s. Galaxy Trading and Chit Fund Co. P. Ltd ; that he knew that the first respondent had subscribed for a chit in the company. He admitted that he signed 2 or 3 documents in connection with the chit transaction of the first respondent with the company in liquidation. He reiterated his assertion in the statement of objections that he signed the documents at the Taluk office at Jayanagar and he also stated that he had also signed certain documents at the office of the company. He also stated that when he signed the documents, the first respondent as well as one Basheer Ahmed were present. He admitted that Basheer Ahmed was the manager of the company. He admitted having a site bearing Corporation No. 7/45. He stated that the site measured 36" X 45". He stated that the site is situated at Neelasandra, South Cross Street, Bangalore. He also stated that the title deeds in respect of the site were given to the first respondent on his representation that he would get a building plan sanctioned for that site because he was to build a house on that site. In cross-examination, on seeing the pronote, Ex. P-1, he stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he signed Exs. P-1 and P-2, because the first respondent was taking a loan. He explained that he knew the first respondent since 15 years. He stated that the first respondent had a shop on Central Street, Bangalore. He denied the suggestion that he signed Exs. P-1 ( a ) and P-1 ( b ) knowing that he was required to be a surety and that he would be liable in the event of the first respondent not discharging the loan. He also stated that the Sub-Registrar, Jayanagar, Bangalore, did not read or explain to him the contents of Ex. P-2. He also admitted that he did not take any steps to recover the documents which he had deposited with the company in liquidation. He denied the knowledge of the company-in-liquidation having been wound up by an order of this court. He, however, admitted that he gave instructions to reply as per Ex. P-3. He was only a surety and the real liability was that of Bashanudien. He, however, claimed knowledge that his title deeds would be returned to him if the first respondent discharged the claim made by the official liquidator. From the above pleadings and evidence recorded, the points that arise for determination in this case are : 1.Whether the applica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up was presented. If this view is applicable then the claim against the first respondent to compel him to pay the balance of the subscription together with the interest accrued was not maintainable under that section. One should not fail to notice that the first respondent has not admitted the transaction but has claimed only to be a benamidar and not the real subscriber. He has not proved his contention. No document whatsoever has been produced by him in support of his assertions in the written statement. Nor has he proved the discharge in the sum of Rs. 4,700 which he has claimed. Even, according to him, the last payment was made by him on May 23, 1975, which date has been taken by me for computing the period of limitation. Nevertheless, the mere admission of the transaction does not amount to acknowledging any debt from which date a fresh period of limitation would commence. In fact, the first respondent has denied any liability at all under the transaction referred to in the claim application. Sri Vijaya Shankar, learned counsel for the official liquidator, very forcefully urged that the court should take note of the mortgage created by the second respondent securing payme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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