OFFICIAL LIQUIDATOR Vs. NARENDRAN

JUDGEMENT

(1.) The Wandoor Jupiter Chits (P) Ltd. was ordered to be wound up on 20th December 1973. The respondent was the manager of its Coimbatore Branch. The branch had a motor cycle, and the prayer, in the Application originally filed by the liquidator under S.468, was for an order to return the motor cycle. It was later found out that the vehicle had been transferred to a third party on 11th December 1973. An "additional prayer" was therefore made, apparently in the alternative, that the respondent be ordered to pay Rs. 6,780 as damages for the loss suffered by the unauthorised sale.

(2.) The respondent's case is this. The motor cycle was purchased in his name, with company's funds, under a hire purchase agreement, for the use of one Hameed, who was Divisional Officer at Coimbatore. Hameed was using it all the time, and it was under his custody and control. Hire purchase instalments were being paid by the company. In July or August 1973 Hameed was transferred to Madras and he took away the vehicle with him. The respondent never knew what had happened to it thereafter. As the vehicle was not in his custody or under his control, he could not be called upon to deliver the same to the liquidator, under S.468.

(3.) Except what the respondent says as R.W. 1, there is no direct evidence as to who was having custody or control of the motor vehicle at the relevant time. Winding up had commenced on 1st October 1973 and provisional liquidator was appointed on 11th November 1973. P.W. 1, the Regional Transport Officer of Coimbatore, speaks only with reference to the records. Some papers have also been summoned from the financiers, and marked. These disclose that the vehicle was registered in July 1972 in the personal name of the respondent, noting H.P. arrangement with the Mercantile Credit Corporation of Coimbatore. This agreement was cancelled and accounts settled on 11th December 1973 and the vehicle was transferred to one Moinudeen on the same date. Moinudeen transferred the vehicle to one Thangamuthu in May 1974. The initial payment made to the Mercantile Credit Corporation was Rs. 1,307.95; and under the H.P. agreement a further amount of Rs. 6,645.50 had to be paid in 24 monthly instalments. Hameed was guarantor to the agreement. By 21st June 1973, only ten instalments of Rs. 280 each had been paid. And on 11th December 1973, the H.P. account was settled, obviously by paying off the balance due at the time of the transfer in favour of Moinudeen. P.W. 1 says that transfers are allowed only when an application is made by the transferor, and that the usual practice is to verify the signature in the transfer application with that in the application for registration. If the two agree, transfer is recorded without any further enquiry. The transfer application of December 1973 is not available as such records are destroyed after one year. The implication is that the respondent must have made an application in December 1973 for transferring the vehicle to Moinudeen. R.W. 1 however asserts that he had made no such application. There is thus evidence to show that the H.P. agreement was terminated and the motor cycle sold away, after the appointment of provisional liquidator and a few days before winding up; but the evidence as to who was responsible for this is not very clear.