LOK SONS (P) LTD. Vs. OFFICIAL LIQUIDATOR

JUDGEMENT

(1.) This application under Sec. 446(1) of the Companies Act, 1956 has been filed with a prayer that the Official Liquidator be directed to consider the claim of Rs. 7,00,860.00 as preferential claim.

(2.) By an order dated 4th Aug., 1992, the said claim was considered as ordinary claim under section 530 of the Companies Act and the claim of interest after winding-up was also rejected. The dispute is in respect of the alleged supply of Polyester and Viscose Staple Fibber to blend and spin and return the blended spun yarn to the petitioner. The submission of the learned counsel for the petitioner is that M/s Jaipur Spinning and Weaving Mills Ltd. (in liquidation) was supplied the yarn for doing the job in accordance with agreement entered into according to which the viscose fibre was to be purchased by the company in liquidation on behalf of the petitioner and they were to charges only 11.50 per kg. as job charges for the blended yarn and further a sum of Rs. 1.50 per kg. towards sorting and drawing charges. Twenty bales of staple Fibre of net weight 4000 kgs. worth Rs. 3.20 lacs were supplied to the company in liquidation and another 20 bales of poster fibre weighing 4125 kg. of the value of Rs. 3.30 lacs were also dispatched taken out from M/s Vico Silk Mills. This latter was first sent to the Rajasthan Spinning and Weaving Mills Ltd. and as they were not in a position to do the job, then it was dispatched to the company in liquidation on 30th June 1981. The blending was to be done in the ratio on 48:52. The claim of the petitioner is that the title, ownership and property in the viscose and staple fibre and the blended yarn always vested with it and the company in liquidation was only the trustee. A sum of Rs. 69,331.40 and Rs. 31,500.00 in respect of job charges was remitted to the company in liquidation. An irrevocable letter of credit of British Bank of Middle East, Bombay for Rs. 1,14,500.00 was already submitted out of which purchase of viscose fibre was made for Rs. 31,500.00 and subsequently 3000 kg. of viscose fibre was purchased by the company in liquidation against the letter of credit. The petitioner has received 4887.5 kg. of viscose fibre against the total of 8471 kg. of polyester and 4000 kg. viscose fibre.

(3.) On behalf of the Official Liquidator, it is submitted by Shri G.K. Garg, that the provisions of Sec. 446 are not applicable and under Rule 164 of the Company (Court) Rules, appeal could have been preferred within 21 days. An application No. 249/84 was filed earlier in which the directions were given to the Official Liquidator for considering the claim of the petitioner within a period of two months and the said claim having already been decided by the Official Liquidator under the provisions of Sec. 446(2) of the Act in the petition, the present application not being in respect of a fresh claim cannot be entertained. It is also submitted that the petitioner has failed to produce necessary documents inspite of opportunities being given to produce its claim as preferential one in accordance with the provisions of Sec. 530(1) of the Act. The various factual submissions have also been denied.