ANUPAM KHOSLA Vs. OFFICIAL LIQUIDATOR HIGH COURT CALCUTTA

JUDGEMENT

(1.) THIS application has been filed by one Smt. Anupam Khosla, one of the daughter of Banshilal Dhiman, since deceased and grand-daughter of Late Dhram Chand Dhiman. It was contended that D. C. Dhiman & Bros. Limited (hereinafter referred to as "the company") was directed to be wound up by on order dated September 7, 1965 and thereafter the Official Liquidator took out an application for misfeasance against Dharam Chand Dhiman, Kissen Chand Dhiman, Meher Chand Dhiman and Keher Chand Dhiman together with Banshilal Dhiman, son of Dharam Chand Dhiman. In the said proceeding an ex-parte decree was passed on 7th February, 1974 for a principal sum of Rs.14,17,948/- together with interest thereon @ 6% per annum from 7th November, 1965 until repayment. On 5th August, 1979, the Official Liquidator filed an application under Order XXI Rule 41 of the Code of Civil Procedure for examination of the judgment-debtors. On the said application an order was passed on 5th December, 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.

(2.) THE relevant portion of the order dated December 5, 1959 reads as follows:-

(3.) IT was further claimed that various payment which was shown as due in the balance sheet dated 31st March, 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 decreetal dues should have been corrected. IT was submitted that the letter dated May 11, 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 decreetal 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 in phillaur be released which has been directed to be sold by the Liquidator as per direction by the Appeal Court. Mr. A. C. Kar, learned Senior Counsel appearing for the applicant refer Section 47 of the Presidency Insolvency Act and submitted that at any point of time, even after the decree is passed and satisfied set off can be given. Mr. Kar submitted that there is no time limit prescribed under the aforesaid section and, therefore, the claim of the petitioner could be entertained at any stage. IT was submitted that the Official Liquidator ought to have deducted the amounts which were already paid by the company. He referred Section 70 of the Contract Act in support of his contention. Mr. Kar also cited a decision reported in AIR 1962 Supreme Court Page 779 Para 14 which reads as follows:-