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TMI Blog2012 (6) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... amination of the judgment-debtors. On the said application an order was passed on 5-12-1979 whereby the said application was disposed of directing the said application to be treated as an application under section 446(2) of the Companies Act, 1956. 3. The relevant portion of the order dated 5-12-1979 reads as follows :- "It appears to me that the respondents are simply trying to deprive the Official Liquidator representing the company in whose favour the said mis-feasnance decree was passed against the respondents, who are the delinquent directors by all possible ways and dilatory process. Be that as it may, I am of the view that having regard to the fact that the properties have been disclosed by the respondents particularly the respondent No. 5 with details and the Official Liquidator is now in a position to execute the said Order and/or decree passed in the said mis-feasance Summons against the judgment-debtors and no useful purpose will be served by proceeding with the examination of judgment-debtors as in this proceedings. It has resulted in the disclosure of the said properties with sufficient particulars to enable the Official Liquidator to sell the same and to prevent mul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e sheet dated 31-3-1958 had already been paid and, therefore, those amounts specially amounts noted on liability side against Omprakash Mohta, Mohta Brothers, D.C. Dhiman should have been removed and the decretal dues should have been corrected. It was submitted that the letter dated 11-5-2009 issued by the Official Liquidator with an intimation that still a sum of Rs. 35,37,261.85P is due and payable, is prima face wrong being based on improper calculation. Moreover, in the said calculation rents realized by the liquidator from the assets by the judgment debtor was not taken into account. It was submitted that the rents realized should have been deducted from the decretal dues. The applicant is entitled to get set off under section 47 of the Presidency Town Insolvency Act. It was also claimed that the amounts payable from the Mohta Brothers and Omprakash Mohta have already been paid and credit should be given for those amounts with interest thereon and those amounts should be directed to be paid to the petitioner or the heirs of D.C. Dhiman. It was also contended that the petitioner be given an opportunity to pay the dues to be settled accordingly. Upon payment, all the properties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... benefit of it. It could have called upon the respondent to demolish the said warehouse and take away the materials used by it in constructing it; but, if the appellant accepted the said warehouse and used it and enjoyed its benefit then different considerations come into play and section 70 can be invoked. Section 70 occurs in Chapter V which deals with certain relations resembling those created by contract. In other words, this chapter does not deal with the rights or liabilities accruing from the contract. It deals with the rights and liabilities accruing from relations which resemble those created by contract. That being so, reverting to the facts of the present case once again after the respondent constructed the warehouse it would not be open to the respondent to compel the appellant to accept it because what the respondent has done is not in pursuance of the terms of any valid contract and the respondent in making the construction took the risk of the rejection of the work by the appellant. Therefore, in cases falling under section 70 the person doing something for another or delivering something to another cannot sue for the specific performance of the contract nor ask for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Companies Act, 1956 in support of his contention. It was also submitted by learned Counsel for the Official Liquidator that the applicants do not pray for any variation before the Court when the order dated 15-3-2010, was passed. They have never pointed out these claims on 15-3-2010 when it was directed that the judgment debtors is now required to pay the amount of the decretal debt less the money recovered from the sale proceeds of the Punjab property plus the amount expended on account of guarding the Punjab property to rid the remaining properties of the order of attachment. The relevant portion of the order dated 15th March, 2010 is quoted hereunder :- "Since the applicants herein have not questioned the expenses incurred by the Official Liquidator in the accounts at page 9 of the affidavit-in-reply to CA No. 51 of 2010, it is evident that the applicants have no manner of grievance as to the Official Liquidator's assertion of the amount expended by the Official Liquidator for guarding the Punjab property. Since the Official Liquidator says that such amount adds up to Rs. 27,20,436, the judgment debtors are now required to pay the amount of the decretal debt less the money re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Presidency Insolvency Act do not authorize this Court to reopen decree nor give any authority to adjust the aforesaid amount of rent. Section 70 of the Contract Act have no application in the present case of the petitioner. The judgment cited by Mr. Kar is also not applicable in the facts and circumstances of this case. It is evident that the applicant did not pray for any variation before the Court when the order dated 15-3-2010 was passed. 7. In my opinion the rent collected by the Official Liquidator could be refunded only after the payments were made to the secure creditors. 8. The claim of the petitioner, on the basis of the balance sheet prepared in 1958 is also not acceptable to the Court in view of the fact that the order of winding up was passed on 7-9-1965 and, therefore, there is no scope today to consider the balance sheet of 1958, which was lost all its relevance. Further more, the claim made by the applicants as regards payment of decretal dues to the Mohta Brothers and O.P. Mohta are disputed questions of facts and there is nothing record before this Court to come to a conclusion on the same either. Therefore, the claim of making payments to the said O.P. Mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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