Karnataka High Court
Official Liquidator Of M/S Vijaya ... vs M/S Lambodhara Textiles Limited on 30 May, 2024
Author: S Sunil Dutt Yadav
Bench: S Sunil Dutt Yadav
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CA No. 887 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE S SUNIL DUTT YADAV
COMPANY APPLICATION NO. 887 OF 2007
IN
COMPANY PETITION NO. 125 OF 2002
BETWEEN:
OFFICIAL LIQUIDATOR OF
M/S. VIJAYA COMMERCIAL CREDIT LTD., (IN LIQN),
ATTACHED TO HIGH COURT OF KARNATAKA,
IV FLOOR, 'D AND F' WING,
KENDRIYA SADAN, KORAMANGALA,
BANGALORE - 560 034.
...APPLICANT
(BY SRI. SHRISHAIL NAVALGUND, ADVOCATE)
AND:
Digitally signed 1. M/S. LAMBODHARA TEXTILES LIMITED,
by VIJAYA P
6B, 6TH FLOOR, PIONEER APARTMENTS,
Location: HIGH
COURT OF 'B' BLOCK, 1075-B, AVINASHI ROAD,
KARNATAKA
COIMBATORE - 641 018.
2. SRI. R. SANTHOSH,
S/O V. RADHAKRISHNAN,
6B, 6TH FLOOR, PIONEER APARTMENTS,
'B' BLOCK, 1075-B, AVINASHI ROAD,
COIMBATORE - 641 018.
3. SMT. ARCHANA SANTHOSH,
S/O SANTHOSH,
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NC: 2024:KHC:18406
CA No. 887 of 2007
6B, 6TH FLOOR, PIONEER APARTMENTS,
'B' BLOCK, 1075-B, AVINASHI ROAD,
COIMBATORE - 641 018.
...RESPONDENTS
(BY M/S. BOPANNA AND GIRI, ADVOCATES FOR R1 AND R2;
R3 - SERVED)
THIS APPLICATION IS FILED UNDER SECTION 446(2)(B)
OF THE COMPANIES ACT, 1956, R/W RULE 6 & 9 OF THE
COMPANIES (COURT) RULES, 1959, PRAYING TO THE
RESPONDENTS MENTIONED IN THE APPLICATION JOINTLY AND
SEVERALLY BE ORDERED AND DECREED TO PAY TO THE
APPLICANT A SUM OF RS. 17,88,825/- WITH INTEREST AT 6%
PER ANNUM FROM 1.7.2007 TO TILL THE DATE OF THE
JUDGMENT AND FUTURE INTEREST AND ETC.,
THIS APPLICATION COMING ON FOR ARGUMENTS, THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The Company Application No.887/2007 is filed under
Section 446 sub-clause 2(b) of the Companies Act, 1956
read with Rule 6 and 9 of Companies (Court) Rules, 1959,
seeking for an order declaring the respondents herein
jointly and severally liable to pay the applicant a sum of
Rs.17,88,825/- with an interest of 6% per annum from
01.07.2007 till the date of judgment and future interest.
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2. It is stated that the company in liquidation
which is the applicant has filed the present application to
the official liquidator who was carrying on business in the
financial field and respondent No.1 had entered into a
commercial transaction with the applicant - company
under lease finance for a sum of Rs.13,48,600/- (Rupees
thirteen lakhs forty eight thousand six hundred only) in
connection with leasing of computers, machineries,
equipments, etc., and same was repayable in 60 equal
monthly installments of Rs.37,087/-. It is further stated
that repayment commenced from 25.10.1994.
3. It is further stated that further financial
assistance was sought for and an agreement was entered
into with respect of 3 more hire purchase financial
transaction as detailed in the application. It is submitted
that certain payments were made and as on 31.12.2004,
an outstanding balance was Rs.9,90,195/- (Rupees nine
lakhs ninety thousand one hundred and ninety five only).
A legal notice in this regard was sent and response was
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made out by the respondents by stating that outstanding
amount was Rs.5,55,000/- (Rupees five lakhs fifty five
thousand only).
4. It is further submitted that it was agreed that a
settlement could be made by freezing the amount as
Rs.19,00,000/- (Rupees nineteen lakhs only) as against
the total liability of Rs.21,83,019/- (Rupees twenty one
lakhs eighty three thousand nineteen only) and the
amount as agreed was required to be paid on a monthly
basis. However, despite such offer being made by the
applicant - company there was default once again and
accordingly, it is stated that the amount as originally
claimed was required to be paid with interest amounting to
Rs.17,89,325/- (Rupees seventeen lakhs eighty nine
thousand three hundred and twenty five only) as detailed
in paragraph No.9 of the application.
5. Insofar as the claim that was made, statement
of objections has been filed by the respondents and the
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respondents admit the lease transaction No.480, HP
transactions No.2425, 2585 and 2771 between the
company in liquidation and the respondents. It is further
admitted that initially mutual agreement was entered into
to settle the amount at Rs.19,00,000/-. It is asserted that
in terms of the settlement arrived at, the question of
charging interest on the amount of Rs.19,00,000/- from
January 2001 onwards does not arise. It is specifically
asserted that this settlement of Rs.19,00,000/- would still
stand good and what was required to be paid is only an
amount of Rs.5,55,000/- which would cover the principal
claim as was agreed to in terms of the settlement, as an
amount of Rs.13,45,000/- (Rupees thirteen lakhs forty five
thousand only) was admittedly paid.
6. Thus, looking into the settlement would indicate
that the respondents while admitting the liability have only
taken the contention that an amount of Rs.19,00,000/-
was agreed by way of settlement and after giving credits
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to the amount paid by the respondents, what remains to
be paid was only Rs.5,55,000/-.
7. On basis of such pleading, matter was referred
for evidence and evidence has been let in by the official
liquidator and the assistant in the office of the official
liquidator has let in evidence reiterating the contention
made in the petition. The calculation made of the balance
to be paid is found at paragraph No.10 of the affidavit.
8. While it is also admitted that on 13.07.2009, an
amount of Rs.5,55,000/- by way of demand draft from the
respondents has also been received. Accordingly,
necessary orders were requested. In support of the said
claim, lease agreement between the petitioner and the
respondents was marked as Ex.P.1. The personal
guarantee of respondents No.2 and 3 were also marked as
Ex.P.2, Ex.P.6, Ex.P.10 and Ex.P.14. Other documents
were also been marked. It is necessary to notice that the
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respondents have not cross examined PW-1 nor let in any
evidence. The point for consideration is as follows:
a. Whether the respondents are liable to pay
and satisfy the claim as made out by the
official liquidator on behalf of the company in
liquidation?
9. From the facts and evidence from records, it is
clear that the hire purchase transactions and agreement
between the company in liquidation and the respondents
are not in dispute. It would be made clear by reading
paragraph No.2 of the statement of objections, the only
dispute is with respect to the quantum of liability. In the
pleadings itself, reading of paragraph No.4 would indicate
that the liability is also accepted though the respondents
claim, same is limited to an amount of Rs.19,00,000/- and
that they are not liable to pay any amount beyond the
sum of Rs.19,00,000/-.
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10. The fact that the respondent has paid a sum of
Rs.13,45,000/- as averred in paragraph No.5 of the
statement of objections is not in dispute, so also the
payment of further amount of Rs.5,55,000/- by way of
demand draft on 13.07.2009 by the company in liquidation
is also not in dispute as would be made out from the
deposition of PW-1 in the affidavit filed in lieu of
examination-in-chief at paragraph No.14. What remains is
the amount that is due.
11. Though the respondents have contended that
the settlement was arrived at Rs.19,00,000/- and they are
not liable to pay any amount beyond it, it is not in dispute
that there is a breach even as regards payment of
Rs.19,00,000/- and in light of default, the question of
adherence to the settlement freezing amount of
Rs.19,00,000/- does not arise.
12. Even otherwise, the memorandum of
understanding is neither forthcoming nor marked in
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evidence. It must also be noticed if that is the specific
stand of PW-1 that the settlement could not be taken note
of, as there was no adherence to the payment of
Rs.19,00,000/- even if it is taken that it was the agreed
amount. Accordingly, the stand of the PW-1 and the
petitioner requires acceptance that settlement amount of
Rs.19,00,000/- could not be frozen and the original claim
is required to be satisfied. This stand of PW-1 is also in
consonance with the earlier stand taken in the notice of
10.08.2005.
13. It must be noticed that the amount due as
calculated at paragraph No.10 of the affidavit is
Rs.17,89,325/- and the amount that is calculated at
paragraph No.10 of the affidavit is as on 30.06.2007. If
credit is given with respect to the amount paid of
Rs.5,55,000/- on 13.07.2009 which is a subsequent
payment, the respondent is liable to pay a sum of
Rs.24,78,525/- (Rupees twenty four lakhs seventy eight
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thousand five hundred and twenty five only) along with
the interest.
14. Accordingly, the Company Application is
allowed and the respondents are liable to pay a sum of
Rs.24,78,525/-. (Future interest is 6%).
Sd/-
JUDGE
MCR
