Himachal Pradesh High Court
M/S Pal Innovations Private Limited vs M/S Sirmour Sudburg Auto Limited on 12 September, 2019
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Co. Application No. 15 of 2018 in Co. Petition No. 1 of 1993 .
Reserved on: 30.8.2019 Decided on : 12.9.2019 M/s Pal Innovations Private Limited, SCO, Sector 37- D, Chandigarh (U.T.) ...Petitioner/Non-applicant r Versus M/s Sirmour Sudburg Auto Limited ...Respondent/Applicant ___________________________________________ Coram Hon'ble Mr. Justice Sureshwar Thakur, Judge. Whether approved for reporting? yes ________________________________________________ For the petitioner/ Non-applicant : Mr. Suneet Goel, Advocate.
For the respondent /Applicant: Mr. Raman Sethi, Advocate. Sureshwar Thakur, Judge The contesting litigants, do not, wrangle over the trite factum, vis-à-vis, the entire principal amount, claimed against the errant respondent/company, being liquidated hence by the latter(s), vis-à-vis, the petitioner/company.
However, the only contentious issue, hence subsisting ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP 2 interse the contesting respondent, is confined, to, (a) vis-à-
vis, the period, whereupto the petitioner, is, entitled to claim the apt component of interest, on the principal .
amount,(b) and to the apt jurisdiction, of, the court, to, decline or accord the afore component, of, interest, vis-à-
vis, the non-applicant, upon, the principal debt, hence, in proceedings drawn, during the process, of, the winding up of petition, being subjudice, rather herebefore. The learned counsel appearing, for the applicant/respondent Company, has contended, with much vigor, before this Court, that the petitioner/company, is entitled to the apt component, of, interest, only upto, the date of presentation, of, the petition, for, winding up, and is not entitled, to lis-pendens interest, if any. In making the afore submission, he has relied, upon, a judgment, rendered by the Allahabad High Court, in case titled as, "
U.P. Oil Mills Agency, Kanpur Vs. Saraswati Soap and Oil Mills Ltd., reported in AIR 1954 All 129, 1954 24 Comp Cas 450 All, the relevant paragraph-8 whereof, is, extracted hereinafter:
"8. In the circumstances, I am of the opinion that the claimant was entitled to interest up to the date 2 ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP 3 of the presentation of winding up petition only. In offering to pay him interest till the date of winding up order the Official Liquidators have really offered .
to make an over payment to him.I am not concerned at this tage with the question whether or not the amount offered to be paid to the claimant can be cut down. All I must hold at present is that the claimant's demand for interest till the date of payment must be rejected. The application is, therefore, rejected with costs."
2. On the other hand, the learned counsel appearing, for the petitioner company/non-applicant, has, for controverting the vigor, of the afore citations, has placed, on record, a judgment, rendered in a case titled as, Universal Bearing Agency versus Wpil Limited, reported in 2006 SCC OnLine Cal 142 : (2006) 2 CHN 530, the relevant paragraph 10 whereof, is, extracted hereinafter:
"10. Learned counsel appearing for the respondent submits, with reference to Rule 96 of ther Companies (Court) Rules, 1959, that the order dated 10.10.2002 was an order of admission and it merged with the order dated 17.11.2003. He 3 ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP 4 submits that since, in the order dated 17.11.2003, there was no order to make payment of interest, therefore, they cannot be compelled to make .
paymentof the interest component. We are unable to agree with the aforementioned contentionofl thelearned counsel. Once the company had paid the principal amount and once they had also made a submission to the effect that they were agreeable to pay costs as was originally ordered, it does not stand to reason as to why the appellant should be forced to approach another forum for realization of the interest component which was found to be a liability vide order dated 10.10.2002 alongwith the principal sum of Rs. 14,81,230.20/-. Under these circumstances, this Court is of the view that the order of payment of interest should have been passed by the appropriate forum and in the instant case, for all practical purposes, the appropriate forum was the Company Judge himself, as has been held by the Delhi High Court, following the decision of the Division Bench of the Punjab and Haryana High Court.The photocopy of the 4 ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP 5 judgment which was produced by the learned counsel appearing for the appellangts is taken on record and the relevant portionis quoted below:
.
"I am in respectful agreement with the opinion, expressed by a Division Bench of the Punjab and Haryana High Court, in Stephen Chemical Ltd. v. Innosearch Ltd., 1986 (60) Comp Case 702 and the Single Bench decision of the same Court in Delhi Cloth and General Mills Co. Ltd Vs. Stephen Chemicals Ltd., 1986 (60) Comp Case 1046 to the effect that the forum of the Company Judge is the appropriate forum for determining as to whether the creditor is entitled to interest where the company admits its liability and, in fact, pays the amount.
My conclusion is that in a case where the liability to pay the principal amount is not disputed by the company the creditor need not be forced to initiate separate litigation for recovery of the interest amount and the interest amount can be determined by the Company the creditor need not be forced to initiate separate litigation for recovery of the interest amount and the interest amount can be determined by 5 ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP 6 the Company Judge in the winding up proceedings and on the failure of the company to pay that amount the company can be .
ordered to be wound up on the ground that it is unable to pay its debts."
Wherein, it stands expostulated that (a) upon the liability vis-à-vis, the principal amount, being not disputed, (b) thereupon, the creditor, being not, amenable, to be driven, to institute rather separate proceedings, for, recovering the apt component of interest, rather the interest component levyable , on the undisputed principal amount, being determinable also by the company judge, hence in the winding up proceedings, (c) and, on the failure, of, the errant company, to, liquidate the apt component of interest, the respondent/ company, being amenable, for, being subjected, to an order of winding up.
3. Apart from it, he has also placed reliance upon a verdict rendered, by, the Punjab and Haryana High Court, in case titled as, "Stephen Chemical Ltd., Chandigarh versus M/s Innosearch Ltd., New Delhi, reported in (I) 1965 Company Cases 456 (S.C.), paragraph-4 whereof is extracted hereinafter:
6 ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP 7"4. In our opinion, where the company Judge was seized of the matter and when the liability to pay the principal sebt had not been disputed by the .
company sought to be wound-up and, in fact, paid up the debt inorder to avoid winding-up, the forum of the company Judge is the appropriate forum for determining as to whether the creditor was entitled to interest on the amount in question or not. The basic policy of law is to avoid multiplicity of litigation."
Where, an alike therewith expostulation, of law, is carried. For the reasons to be assigned hereinafter:, the judgment(s) relied upon, by the learned counsel, for the petitioner-Company/non-applicant, though are not tritely aplomb, upon, the afore controversy engaging them, as in both, the judgments( supra), though, there was a contest, with respect to, (a) the entitlement of the petitioner/company, vis-à-vis, the apt component, of, interest component, as levyable upon, the principal amount, (b) and, yet also when in the judgment titled, as Universal Bearing Agency versus Wpil Limited, reported in 2006 SCC OnLine Cal 142 : (2006) 2 CHN 7 ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP 8 530, there was also an order, recorded, on 10.10.2002, wherethrough, the apt interest component was hence, visibly determined. Moreover, there are trite .
expostulation(s) of law, borne therein vis-à-vis, the apt entitlement(s), of, component of interest, upon, the principal amount, (b) and also there are further expostulation(s), qua, the company Judge, being bestowed, with, the apt jurisdiction, to determine, the, entitlement, of, the petitioner/Company, qua the apt component interest, and, rather at the rate, hence levyable, upon, the principal debt, (c) and upon failure(s), of, the errant company, to, liquidate the afore determined apt component of interest, hence, the company judge being empowered, to, make an order, of, winding up, of, the errant company, (d) nonetheless, both the afore judgments, are completely silent, vis-à-vis, the period, whereupto the petitioner/company, is entitled, to, the apt component interest, levyable on the principal debt. Contrarily, in the judgement, relied upon by the learned counsel, for, the applicant, there is a complete, pointed answer, to the afore issue, and also when a reading paragraph-8, of, the judgment(supra), 8 ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP 9 relied upon, by the learned counsel for the applicant, (e) unfolds, qua the petitioner/non-applicant, being entitled, to, the apt component interest, only upto, the .
presentation, of, the winding-up of petitioner, and, not thereafter, (f) thereupon when the litigating parties, do not, contest, vis-à-vis, the entire principal debt, being liquidated, by the respondent/errant company, vis-à-vis, the petitioner/company, and, when vis-à-vis, the afore alluded controversy(s), the petitioner-Company, is also entitled, to, the apposite component, of, interest, upon, the principal debt, only uptill, the, presentation of the winding up petition, against the errant company.
However, the afore relied judgment, would not, hold any absolute sway, vis-à-vis, the computation, of, subjudice interest, upon the principal debt, (g) as given the afore reliance rather holding sway hence with this Court, only when, in contemporaneity, vis-à-vis, the filing of the petition, or prior thereto, either the principal debt being admittedly liquidated, by the errant company, vis-à-vis, the petitioner-Company, and when obviously, hereat rather the principal debt, standing liquidated, on 6.3.2018, hence after many years elapsing, since the 9 ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP 10 presentation, of, the company petition, before this Court,
(h) thereupon, vis-a-vis the hiatus, since 1993, and, upto 6.3.2018, whereat the principal debt, stood deposited, in .
the Registery of this Court and, whereafter it, under orders recorded on 3.4.2018, hence stood released, vis-
à-vis, the petitioner/company, it would not be either befitting or sagacious for this Court, to not allow, the, component, of, interest, upon, the principal debt, since, 3.3.1993, uptill, 6.3.2018, upon, the afore deposited sum, of, principal debt, rather vis-à-vis, the non-
applicant company.
4. Consequently, even if this Court, accepts the expostulations recorded, in the judgment (supra), as relied, upon, by the learned counsel, for the respondent-
company, yet, for all the afore reasons, the, afore judgment, is inapplicable, to the facts at hand, rather the judgment(s) relied, upon, by the learned counsel, appearing for the petitioner-company, are, applicable, hereat, and, when this Court, in, consonance therewith,
(a) is empowered, to determine, the, component of subjudice interest, from, 3.3.1993, uptill 6.3.2018, rather upon the principal amount, (b) thereupon interest 10 ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP 11 @ 9 % per annum, is, ordered to be levied, upon, the principal debt, as stood comprised in a sum of Rs.
4,74,000, and, the afore component of, subjudice .
interest, hence for the afore interest, is directed, to be deposited, within two weeks, in the Registry of this Court, and, in case, any default is made, thereupon, hence thereafter this petition be listed, before this Court, for enabling the Court to make an order, for winding, up, of the errant respondent-company.
(Sureshwar Thakur) 12.9.2019 Judge Kalpana 11 ::: Downloaded on - 29/09/2019 04:20:25 :::HCHP