1. This is claim petition under sub-section (2) of Section 446 of the Companies Act, 1956 for recovery of Rs. 12,610.15 p. The Petitioner-company was carrying on finance business at Jullundar. A petition for its winding up was filed on June 9, 1969. The company was ordered to wound up by this Court in Civil Original 26 of 1969, on 9-1-1970 (Punj). The official Liquidator attached to this Court was appointed the liquidator of the company. He has, therefore, filed this claim petition on behalf of the company in his official capacity.
2. The claim is that on December 27, 1962 a sum of Rs. 6,000/-was lent by the company to R. L. Soni respondent and the same was repayable with interest at 12 percent per annum which is the usual rate at which the company charged interest on loans granted by it. According to the claim petition, part payment of Rs. 594/-and Rs. 500/-were made in cash by the respondent towards principal interest in account on April 12, 1965 and May 21, 1966 respectively. Another sum of Rs. 1,000/-is said to have been paid to the company by cheque Exhibit P.7 on June 15, 1966, but the said cheque was dishonoured.
3. The claim has been contested by the respondent. According to his written statement, the respondent and one Gurcharan singh Bakhshi were partners of Messrs. Sonico Distributors and Gurcharan Singh's mother Shrimati Anup Kaur had a deposit of Rs. 8000/-with the company, out of which the sum of Rupees 6,000/-in question was drawn by the respondent on behalf of Shrimati Anup Kaur and credited to her account in the books of the respondent's partnership. In fact the respondent claims that Rs. 3,000/-on one occasion and another Rs. 1,500/-on another occasion were paid out by his partnership to Shrimati Anup Kaur out of the sum of Rs. 6000/-and only Rs. 1,500/-on another occasion were paid out by his partnership to Shrimati Anup Kaur out of the sum of Rs. 6,000/-and only Rs. 1,500/-remained due to her. Though he admitted having received Rs. 6,000/-by cheque from the company vide voucher Exhibit P.1 he denied having received it as a loan and stated that he merely signed the voucher in blank on December, 27, 1962, when there was no other entry in it.
4. The company filed a replication. Wherein it was stated that Shrimati Anup Kaur did have a deposit of Rs. 8,000/-with it, but that she claimed the whole of that amount from the official Liquidator without making any mention of any withdrawal of Rs. 6,000/-out of that amount in the manner alleged by the respondent. From the pleadings of the parties, I framed the following issues:--
(1) Whether the claim is within time?
(2) Whether the amount in question was paid to the respondent as loan?
(3) If the principal is due to the company, what interest, if any, is the company entitled to?
Issue No. (1):
5. In view of the provisions of Section 458A of the Companies Act, this claim petition has been filed within time after June 9, 1969, the date of presentation of the winding up petition. It remains to be seen whether the claim was within time on that date i.e. on June 9, 1969 or not. Even if the earlier payments of Rs. 594/-and Rs. 500/-are assumed to have been made by the respondent the claim would not have been within time on the date of presentation of the winding up petition. It is conceded by Mr. Kuldip Singh Keer, the learned counsel for the Official Liquidator that this claim petition can be held to be within time only if the payment of Rs. 1,000/-by cheque dated June 15,`1966, saves it from being barred by time. This being the common case of the parties, the only question that has to be answered in order to decide issue No. (1) is whether the payment by the said cheque dated June 15, 1966, saves the claim from being barred by time or not. It is claimed that the suit is within time on account of payment of Rs. 1,000/-by the said cheque by virtue of Section 19 of the Limitation Act 1963. The said provision reads as follows:-
'Where payment on account of debt or interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made:
Provided that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgment of the payment appears in the handwriting of or in writing signed by, the person making the payment. Explanation. For the purposes of this Section--
(a) Where mortgaged land is in the possession of the mortgagee the receipt of the rent or produce of such land shall be deemed to be a payment.
(b) 'debt' does not include money payable under a decree or order of a Court.'
The cheque Exhibit P.7 was issued on the account of Messrs. Sonico Distributors under the signature of G. S. Bakhshi, partner of that firm. The cheque is dated June 15, 1966. It is not signed by the respondent, without going into the question of the effect of the cheque being not signed by the respondent, but by the partner of his, and without going into the question of the effect of the cheque not being drawn by the respondent on his account, but having been drawn by his partner on the account of the firm of which the respondent was a partner, it appears to me that payment by the said cheque would not save limitation under Section 19 of the Limitation Act as the cheque was admittedly dishonoured on presentation to the bankers of Messrs. Sonico Distributors on whom the cheque had been drawn. Exhibit P.8 is the memorandum of the Punjab Co-operative Bank Limited Amritsar dated June 25,1966 returning the cheque dishonoured with the endorsement that the payee may 'refer to the drawer.'
I have not doubt in my mind that if the cheque had been encashed and if the cheque could be treated to be of the respondent, this would have amounted to part payment within the meaning of Section 19 of the Limitation Act, and would have saved the suit from getting barred by time. If, however, the cheque is not honoured, it cannot be said that he amount represented by the cheque has been 'paid' by the drawer to the payee. Section 19 starts with the words 'where payment on account of a debt or of interest' is made before the expiration of the prescribed period by the person liable to pay the debt' or by his agent duly authorised in this behalf. As already stated I will assume that G. S. Bakhshi was the duly authorised agent of the respondent for making the payment on behalf of the respondent to the company. But the cheque having however, been dishonoured. It cannot be said that any payment at all was made by anybody to the company by that cheque.
I am supported in this view by a Division Bench judgment of the Bombay High Court in Chintaman Dhundiraj v. Sadguru Narayan Maharaj Datta Sansthan. AIR 1956 Bom 553. It was held in that case that when the cheque in question was dishonoured, there was a revival of the original debt and the suit had to be filed within the normal period of limitation. It was observed that there is no acknowledgment of liability merely by giving a cheque which is dishonoured on presentation. The view of the Bombay High Court was followed by learned Single Judge of the Patna High Court in Arjunlal Dhanji Rathod v. Dayaram Premji Padhiar. AIR 1971 Pat 278. No authority to the contrary has been cited before me. I am in agreement with the view of the Division Bench of the Bombay High Court and following the same I hold that this claim has not been filed within time as it is not saved by the handing over of the cheque Exhibit P.7 which was dishonoured on presentation.
Issue No. (2):
6. Though this is a hotly contested issue. I am of the view that the company has been able to prove it. Leaving out of consideration altogether the oral evidence led by the parties and relying only on the documentary evidence led in the case, it is clear that the sum of Rs. 6,000/-was actually taken by the respondent from the company by Cheque on December 27m 1962, vide voucher Exhibit P. 1. That itself would not, however, show that it was a loan. It has therefore, to be found out as to which of the two rival theories canvassed by the parties is correct, namely whether it was a loan or it represented the withdrawn of Rs. 6,000/-by the respondent out of the deposit of Shrimati Anup Kaur with the company under instructions from Shrimati Anup Kaur. Three pieces of unimpeachable evidence support the petitioner's version and are wholly inconsistent with the story of the respondent in this behalf.
Firstly the consistent entries in the books of account of the petitioner-company which had no venom against the respondent. On a payment of Rs. 6,000/-to the respondent his account was opened and the same was debited to him. It was not credited to the account of Shrimati Anup Kaur. Secondly, it being the admitted case of the respondent that he obtained the payment at the instance of Anup Kaur, her two letter Exhibits P.17 and P.19 clinch the issue. In the undated letter Exhibit P.19 signed by Anup Kaur, she had asked the company to pay Rs. 6,000/-to the respondent against lien on her account (which means on her guarantee) as advance. She further stated that he would pay interest to the company on that amount. This clearly shows that it was a loan. This view is further strengthened by Anup Kaur's letter Exhibit P.17 addressed to the Official Liquidator after the company went into liquidation claiming the total sum of Rs. 8,000/-representing her deposit with the company. Thirdly, the statement of Sardari Lal Khanna, accountant of the respondent was not at all convincing. The real book of account which would have helped in the decision of the matter was held back by him or by the respondent. For all these reasons. I hold issue No. (2) to have been proved.
Issue No. (3):
7. Interest at the rate of 12 percent per annum has been claimed only on the basis of the customary rate at which interest was being charged by the company on hire-purchase agreements. The amount in question was admittedly not given to the respondent on any hire purchase basis. If the claim had been filed within limitation. I would have allowed interest to the company only at the rate of six percent per annum. This issue stands decided accordingly.
Issue No. (4):
8. In view of my finding of issue No. (1) this claim fails as barred by time, and is accordingly dismissed though without any order as to costs.
9. Petition dismissed.