Madhubala Sharma vs M/S Anand Pratyabhoot Vitt Nigam ...
2014 Latest Caselaw 4329 Del

$~7
* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of decision: 10th September, 2014

+                   CO.APP. 43/2013 & CM No.10292/2013

      MADHUBALA SHARMA                             ..... Appellant
                  Through :            Mr. Vikas Sharma and
                                       Mr. Laxman, Advs.
                          versus

      M/S ANAND PRATYABHOOT VITT NIGAM
      LTD. (IN LIQN.)                         ..... Respondent
                      Through : Mr. Kanwal Chaudhary,
                                official liquidator.
      CORAM:
      HON'BLE MS. JUSTICE GITA MITTAL
      HON'BLE MR. JUSTICE SUNIL GAUR

GITA MITTAL, J. (Oral)

1. By way of the instant appeal, the appellant challenges the

order dated 28th May, 2013 passed by the learned Single Judge in

Co. Application No.01/2010 whereby the appellant has been

directed to refund the official liquidator an amount of Rs.6,13,408/-

with simple interest @ 9% per annum from 12th May, 2006 till the

date of payment.

2. The appellant along with her husband had made a total of

twenty investments in the sum of Rs.82,099/- between 23rd April,

Co.App.No.43/2013 page 1 of 13 1988 to 24th June 1989 in two schemes of the company, i.e., fixed

deposit scheme and hire purchase scheme. It is stated that under

both the schemes, the cumulative/compound rate of interest @ 14%

(for fixed deposit) and 27% quarterly or 30% p.a. (for hire

purchase scheme) was payable.

3. We may note the interest prescription on the fixed deposit

and hire purchase instruments. We find that in the fixed deposit

receipt the following interest is stipulated:-

"2. Annual yield is worked out assuming that the monthly interest is reinvested @ 14%."

4. The hire purchase agreement mentions the following:

"That the Company guarantees a return of 30% yearly % p.a. to the investor(s) under this Hire Purchase Business/Agreement."

5. It appears that a winding up petition under Section 433 of the

Companies Act, 1956 came to be filed against M/s. Anand

Pratyabhoot Vitt Nigam Limited in the year 1990. The official

liquidator attached to the company court was appointed as

provisional liquidator and on the 3rd of October, 1991, the Assistant

Official Liquidator attached to the company wrote the following

Co.App.No.43/2013 page 2 of 13 letter to the appellant:

       "To,                                      Dated : 3.10.91
       Smt. Madhu Bala
       C/o N.K. Sharma
       B-20/10, Lakhanagar,
       Meerut Court, (U.P.)

Sub: In the matter of M/s. Anand Pratyabhoot Vitt Nigam Ltd. (In Provisional Liquidation)

Sir, Please refer to your letter No. Nil dated 28.8.91 on the above subject I have to inform you that the above company has been provisionally wound up by the orders of the Hon'ble High Court of Delhi dated 7.3.1991 and the undersigned has been appointed as its provisional Liquidator.

This office has not invited the claims from the creditors of the company. You are advised to submit your claim as and when invited. In this connection your attention is also invited to the provisions of Section 529/530 of the Companies Act, 1956 and rules 147 and 149 of the Companies (Court) Rules, 1959.

Yours faithfully Sd/-

(ARVIND SHUKLA) ASSTT. OFFICIAL LIQUIDATOR, DELHI"

(Emphasis supplied)

It is therefore, apparent that the office of the official

Co.App.No.43/2013 page 3 of 13 liquidator was fully aware of the liability of the company to the

appellant and had interdicted any claim for the amounts due and

payable.

6. The above communication from the office of the official

liquidator shows that the appellant had made a claim of which the

official liquidator was aware. In fact the official liquidator had

directed the appellant to resubmit the same that claims were invited

by him. Thus, the appellant had made the requirement of Rule 156

and in the given facts and circumstances, in fact the appellant was

required to be paid interest on the contractual rate till the date of

payment. This fact is completely escaped the attention of the

learned Single Judge resulting in passing of the order dated 28 th

May, 2013.

7. The company court passed the order dated 16th February,

2005 directing the official liquidator to invite claims from the

creditors and workmen of the company. The official liquidator

took steps and claims were invited by advertisement issued on the

25th of March, 2005. It appears that 28 claims were received by the

office of the official liquidator.

Co.App.No.43/2013 page 4 of 13

8. For the first time the office of the official liquidator issued a

notice dated 24th October, 2005 under Rule 159 of the Companies

(Court) Rules, 1959 to the appellant calling upon the appellant to

state the amounts due to her as on 1st of October, 1997. After due

scrutiny and examination of the relevant records, the official

liquidator's office admitted the appellant's claim for the sum of

Rs.7,42,509/-.

9. The official liquidator scrutinized the claim and submitted its

report. After due consideration, by the order dated 18th of April,

2006, the company court directed the official liquidator to disburse

the amount of Rs.14,18,693/- among the 28 claimants. So far as

appellant is concerned, his claim for the sum of Rs.7,42,509/- was

found due and payable. This amount was released in favour of the

appellant on the 12th of May, 2006.

10. It is noteworthy that the amounts which were released in

favour of the appellant in the year 2006 had actually become due

and payable to her in the year upto 1992. In view of the letter

dated 3rd of October, 1991 and pendency of the winding up

proceedings, the payments to the appellant were interdicted. In fact

Co.App.No.43/2013 page 5 of 13 the appellant deserved to be paid interest on the amount payable

and due to her in terms of the fixed deposit scheme as well as the

hire purchase agreement up to the date of actual payment.

However, inasmuch as no grievance was made by the appellant and

she unconditionally accepted the amount being disbursed by the

official liquidator in terms of the order dated 18th of April, 2006,

we are refraining from making any order in terms thereof.

11. So far as the 28 claimants are concerned, the matter attained

finality.

12. Long thereafter, it appears that behind the back of the

appellant, on 7th of September, 2009, the official liquidator

informed the Company Judge that it was in the process of re-

examining the claims.

13. It appears that some third person raised certain objections

with regard to the payment of the amounts to the appellant. The

order dated 1st of September, 2009 came to be passed by the

Company Court noting the submission of the official liquidator.

14. It is submitted by Mr. Vikas Sharma, learned counsel for the

appellant that the order dated 1st of September, 2009 was also

Co.App.No.43/2013 page 6 of 13 passed as well as the re-examination of her claim by the official

liquidator's office was without notice to the appellant and without

giving her any opportunity of placing her side of the case.

15. In this relook, the official liquidator arrived at a conclusion

that excess amount of Rs.4,81,169/- had been paid to the appellant.

It is only thereafter that the official liquidator addressed the letter

dated 5th of October, 2009 calling upon the appellant to attend the

office.

16. It appears that the appellant's husband visited the office of

the official liquidator and informed him about the interest liability

and claimed that the amount had been rightly calculated and paid to

her. Despite these submissions, letter dated 24 th of November and

24th of December, 2009 were issued by the office of the official

liquidator calling upon the appealnt to return the amount of

Rs.4,81,169/-.

17. On the 21st of January, 2010, the Company Court passed an

order with a direction to the official liquidator to file a status report

and to seek the assistance of a Chartered Accountant if necessary in

the matter.

Co.App.No.43/2013 page 7 of 13

18. It is claimed before us on behalf of the official liquidator that

in terms of these directions of the court M/s Rai and company's

Chartered Accountant was appointed for scrutiny of claims by

letter dated 15th of February, 2010 and the claims filed were handed

over to this Chartered Accountant.

19. The appellant makes grievance that no notice was served

upon him with regard to examination of her claim by this Chartered

Accountant and she was not joined in any consideration. No

opportunity whatsoever was given to her to make any submission

or to answer any objections which may have been arisen in the

mind of the Chartered Accountant.

This submission is made without prejudice to the main

contentions of Mr. Vikas Sharma, learned counsel for the appellant

that the matter stood finally considered upon finalization of claims

by the official liquidator and submission of the report which had

resulted in passing of the order dated 18th of April, 2006 by the

Company Court directing disbursement.

20. In the report submitted by the Chartered Accountant of the

office of the official liquidator, it was stated that amount of

Co.App.No.43/2013 page 8 of 13 Rs.6,13,408/- due from the appellant as returnable by her on

account of the same having been paid in excess. Based on this

report, the official liquidator filed C.A.No.01/2010 on the 12 th of

July, 2010 before the Company Judge seeking the orders for

recovery of the said amount with interest at the rate of 18% per

annum from June, 2006 till realization.

21. The respondent contested this application on several grounds

including the limitation. It was also stated that the amount was

disbursed in favour of the appellant after the same had been

scrutinized pursuant to her claims and stood approved by the

Company Court. The appellant also urged that as per the fixed

deposit receipt claim, the appellant was entitled to 14% cumulative,

that is compound rate of interest on the fixed deposit while as per

hire purchase claim the appellant was entitled to compound

interest, that is interest @ 30% per annum.

22. It was also urged that the contractual rate of interest was

liable to be paid till the amount was received by the appellant in

terms of Rule 156 of the Company Rules 1956. The appellant

vehemently challenged the jurisdiction of the Company Court as

Co.App.No.43/2013 page 9 of 13 well as the official liquidator to conduct the re-verification and re-

examination of the creditor's claim behind his or her back which

stood finalized and disbursed to her after due process and with her

participation.

The appellant assailed the report of the Chartered

Accountant and the official liquidator on the ground that the same

was contrary to the agreement between company and the creditors

as well as their proceedings having been conducted behind her

back in violation of principles of natural justice.

These objections were considered and rejected by the

learned Company Judge by the impugned order dated 28 th of May,

2013.

23. The appellant challenges this order on the very grounds on

which the application was contested. It is additionally urged that

the learned Single Judge has erroneously calculated simple interest

@ 4% per annum on the deposit as being payable beyond the date

of maturity and has contradictorily directed refund to the amount of

Rs.6,13,408/- with simple interest @ 9% per annum

24. The above narration of facts would show that the claim of

Co.App.No.43/2013 page 10 of 13 the appellant based on the agreements with the company stood

carefully considered by the official liquidator and found admissible

to the extent of Rs.7,42,509/-. This amount includes claimed

interest which had been carefully scrutinized by the official

liquidator. There is no dispute with regard to deposits made by the

appellant.

25. The report of the official liquidator with regard to the 28

claims, including the claims that of the appellant, had been

scrutinized by the learned Company Judge and by the order dated

18th of April, 2006 disbursement thereof was directed by the

learned Company Judge. It is also not disputed that these

proceedings of the Company Judge as well as the official liquidator

were conducted after scrutiny of all documents and claims of the

appellant. The matter stood finally concluded after the amount was

disbursed.

26. We find substance in the contention of the learned counsel

for the appellant that re-examination thereof behind the back of the

appellant by the Chartered Accountant and the filing of the

application being C.A.No.01/2010 by the official liquidator behind

Co.App.No.43/2013 page 11 of 13 the back of the appellant was contrary to the binding principles of

natural justice as well as law.

27. It is pointed out by Mr. Vikas Sharma, learned counsel that

in terms of the order dated 18th of April, 2006 the appellant has

been granted interest up to 1st of October, 1997 only and nothing

beyond that. The computation of the interest is based on the hire

purchase agreement as well as fixed deposit receipt of the

company. The rates of interest and the computation stood verified

by the official liquidator and the court in 2006.

28. The appellant accepted the payment of interest till 1997 and

did not make any issue with regard to her entitlement of interest up

to the date of payment even though the appellant was kept waiting

for almost 15 years after the amount became due and payable by

the company.

29. For the view we have taken herefore, we are not disucussing

the other contentions which have been raised by the appellant in

the appeal, some of which have been noted hereinabove.

30. We are informed that there is an amount of Rs.15,00,000/-

lying credited with the office of the official liquidator. No further

Co.App.No.43/2013 page 12 of 13 claims are pending.

31. We are informed that Smt. Madhu Bala is a senior citizen

who is residing in Meerut. Her husband is stated to be a pensioner

who has been compelled to contest the case in Delhi since 2010

when notice in Co. Application No.01/2010 was issued. We are of

the view that they have been unreasonably harassed.

32. For all these reasons, the order dated 28th May, 2013

directing the appellant to refund the amount to the official

liquidator with interest is hereby set aside and quashed. The

appellant shall be entitled to costs which are quantified at

Rs.20,000/- which shall be sent by demand draft to the appellant at

her address on the memo of parties within a period of four weeks

from today.

This appeal is allowed in the above terms.

CM No.10292/2013 In view of the order on appeal, this application is dismissed.

GITA MITTAL (JUDGE)

SUNIL GAUR (JUDGE) SEPTEMBER 10, 2014/mk

Co.App.No.43/2013 page 13 of 13