TMI Blog1998 (2) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... which was incorporated under the provisions of the Companies Act, 1956, on September 14, 1979, was directed to be wound up, vide order dated August 17, 1990, passed in Company Petition No. 60 of 1988. Upon passing of the order of winding-up, the official liquidator attached to this court was ordered to be the official liquidator of the company and was directed to take over the assets, records, statutory books and other properties of the company. The managing director of the company filed statement of affairs with the official liquidator of the company and on the basis of the account books maintained by the company in normal course of its business, it was observed that the respondent-company owes a sum of Rs. 19,500 to the petitioner-company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is averred that against advance of Rs. 14,000 the petitioner-company later on made supply of goods of Rs. 9,865 and a sum of Rs. 4,135 is due to the respondent-company from the petitioner-company. In this reply, it was prayed that the petition is liable to be rejected by this court. On the basis of these rival pleadings, the court vide its order dated August 26, 1994, framed the following issues : (1)Whether the petition is barred by limitation? OPR. (2)Whether the petitioner is entitled to the amount as claimed in the petition? OPP. (3)Whether the cash payment of Rs. 500 on November 20, 1988, was made by the respondent. If so, its effect? OPP. (4)Relief. The official liquidator examined ex-managing director of the company H.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner is believed, when the winding-up petition was presented the claim was well within the prescribed period of limitation, the winding-up order dated August 17, 1990, obviously relates back to the date of presentation of the petition which is July 11, 1988. The company would certainly be entitled to the benefit of the exclusion of period from the date of presentation of the winding-up petition till the passing of the winding-up order plus one year from the date of the order of winding-up in accordance with the provisions of section 458A of the Companies Act. As such, the petition could be filed till August 16, 1991, and the present petition has been presented on July 2, 1991. It is also averred by the petitioner-company that a part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. In the detailed cross examination of this witness nothing material could come. Vide order dated March 31, 1995, cross-examination of this witness was deferred as the original record was not produced. In the further cross-examination of this witness on May 26, 1995, nothing damaging to the case of the petitioner-company was brought on record. The witness has stated to the effect averred in the petition. P.W.-2, the assistant from the office of the official liquidator had produced the records and the notice served by the official liquidator and acknowledgment receipt thereof as P.W.-2/1 and P.W.-2/2, the bill vide which the goods were supplied by this witness as P.W.-2/3. To rebut the case of the company, R.W.-1, the managing director of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... W.-1/2 also refers to the entries of the previous year. I am unable to see any merit in this objection raised by learned counsel appearing for the respondent-company. P.W.-1/2 is the audited balance-sheet of the company in which due liability of the respondent-company has been shown. Another factor which must be taken into consideration is that there is apparent variation in the stand taken by the respondent-company, in its reply filed in this company petition in comparison to the reply given by the respondent-company to the notice served on behalf of the official liquidator. In the reply to the notice it was stated that they have not transacted with the petitioner firm and the accounts show a balance of Rs. 11,520 remaining out of the adva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n spite of this notice, the payment was not tendered or made to the official liquidator. The official liquidator has claimed 18 per cent. interest which is obviously the minimum market rate of interest payable on commercial transactions. As such, the official liquidator would also be entitled to the interest at the rate of 18 per cent. per annum. In view of my discussion above, all the three issues i.e., issues Nos. 2 and 3 are answered in favour of the petitioner-company and against the respondent while issue No. 1, the onus of which was on the respondent-company, is also decided against the respondent-company. Consequently, the order for payment of Rs. 19,500 with interest at the rate of 18 per cent. per annum from February 1, 1991, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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