Kerala High Court
M/S.Himavarsha Kuries Private ... vs Anil Kumar V P on 27 June, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
(Original Jurisdiction)
Present:
The Honourable Mr.Justice DEVAN RAMACHANDRAN
Tuesday, the 27th day of June, 2023/6th Ashadha, 1945
In the matter of the Companies Act, 1956
and
In the matter of M/s.Himavarsha Kuries Pvt. Ltd. (In Liquidation)
C.C.No.434/2020 in C.P.No.13/2014
Claimant
M/s.Himavarsha Kuries Pvt. Ltd. (In Liquidation),
Represented by the Official Liquidator, High Court of Kerala,
Ernakulam.
Respondent
Anilkumar V.P.,
Kattukaran House,
Thalikkode, Pattikkode,
Pattikkad P.O.,
Thrissur - 680 652.
This Claim coming on for hearing on this day in the presence of
Smt.S.Jasmine, Standing Counsel for the Official Liquidator and
Sri.T.G.Rajan and Sri.Mathai Eappen Vettath, Advocates for the respondent,
this Court delivered the following:-
C.C.No.434 of 2020
in
C.P.No.13 of 2014 -2-
DEVAN RAMACHANDRAN, J
------------------------------------------
C.C.No.434 of 2020
in
C.P.No.13 of 2014
------------------------------------------
Dated this the 27th day of June, 2023
JUDGMENT
This claim has been filed by the Official Liquidator
seeking decree against the respondent for a sum of
Rs.10,50,000/-, along with interest at the rate of 12% per
annum from 22.08.2011 till realization.
2. However, the respondent has filed a counter affidavit
producing therewith certain documents; and this Court,
therefore, ordered the Official Liquidator, on 12.04.2023, to
verify the same and file a reply.
3. The Liquidator has now filed a reply on record, making
the following averments.
"2. It is respectfully submitted that as per the Debtors List furnished by
the Chartered Accountant appointed for preparation of Statement of Affairs
as per the orders of this Hon'ble Court dated 19.3.2020 in Report No.2 in
C.A.No.186/2019 in CP No.13/2014 the respondent is a debtor of the
company (in liqn.) for an amount of Rs.10,50,000/- being the balance
amount due in Chitty No.290 conducted by the above named company from
22.8.2011. Hence the Official Liquidator has filed the above company
claim against the respondent under Section 446 of the Companies Act, 1956 for
C.C.No.434 of 2020
in
the realization of the kuri debt amount of Rs.10,50,000/- together with
interest @ 12% per annum with effect from 22.8.2011.
3. It is respectfully submitted that as directed by this Hon'ble Court the
respondent has submitted original Pass books in Ticket No.290 and 291,
Duplicate of Security deposit receipt No.365 for Rs.3,82,000/- and certain
receipts before the Official Liquidator on 12.4.2023. On verification of the
original pass book in T.No.290 in 22nd day monthly kuri it is seen that the
kuri was auctioned by the respondent and received consideration. Paid seal
is also affixed. Hence the respondent is liable to remit the balance amount
due to the company (in liqn.) along with interest as per the terms and
conditions of the kuri.
4. On verification of the Pass book Ticket No.290 and receipts
submitted by the respondent it is seen that out of 220 instalments, the
respondent had remitted 45 instalments upto 22.8.2014 and defaulted 175
instalments @Rs.5,000/- totalling to Rs.8,75,000/-. It is also seen from the
duplicate of Security Deposit receipt No.365 produced by the respondent
that an amount of Rs.3,82,000/- was deposited by him towards the security
of the chit amount. This amount is not seen as deducted in the Debtors
List provided by the Chartered Accountant appointed for preparation of
Statement of Affairs. Hence he is eligible for set off for the above said
amount of Rs.3,82,000. After allowing set off an amount of Rs.4,93,000/-
is still due from the respondent. The statement in paragraph 5 that he has
not received any amount from the company is not correct. He auctioned
the kuri and received Rs.6,18,000/- on 23.4.2011, he deposited
Rs.3,82,000/- as security. Company paid Rs.76,400/- towards the interest
for deposit also. Hence the respondent is liable to pay the balance amount
due to the company.
5. It is further submitted that the respondent has submitted another
Passbook in Ticket No.291 in 22nd Day Monthly Kuri which is seen as in the
name of Jiji Anilkumar. No auctioned seal is affixed in the above pass book
and as per the receipt furnished by the respondent the said kuri is non-
prized. It is also seen that out of 220 instalments she has remitted 31
instalments upto 22.6.2013. Actual amount remitted in the above said Kuri
Ticket No. 291 is Rs.82,726/-. However as the kuri is in the name of Jiji
Anilkumar and she is not a surety in Chit No.290, consent from Jiji
Anilkumar is required for allowing set off of the said amount of Rs.82,726/-
towards the dues in Chit No.290 (Company Claim No.434/2020)."
4. The learned counsel for the respondent did not contest
the afore averments in the reply of the Official Liquidator; but
pleaded that the above mentioned amount of Rs.82,726/- be
also adjusted and a decree be passed only for the balance
C.C.No.434 of 2020
in
amount.
5. However, Smt.S.Jasmine - learned Standing Counsel
for the Liquidator says that the afore amount is in the name of
the wife of the respondent and hence that her consent is
required, if any adjustment is to be made. Since no such
consent has been placed on record, I deem it appropriate to
accede to the calculation of the Liquidator - it being
uncontested.
6. For the reasons above, this claim is decreed for an
amount of Rs.4,93,000/- against the respondent, along with
interest at the rate of 6% per annum from 22.09.2014 until
realization.
Sd/-
DEVAN RAMACHANDRAN,
JUDGE
MC
