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1998 DIGILAW 819 (KAR)

PRAJVI INDUSTRIAL SUPPLIES v. CAPRI POLYMIX (P. ) LTD.

1998-12-18

M.F.SALDANHA

body1998
M. F. SALDANHA, J. ( 1 ) I have heard the learned advocates on both sides. A peculiar legal position has arisen in this case because the respondents' learned counsel filed a memo before the court setting out the details of the transactions and all the payments that have been made. The submission that was canvassed was that apart from the present proceedings, the petitioners have also instituted criminal proceedings and that when the present winding up proceedings were filed, credit for an amount of Rs. 70,466 was not given to the respondents even though this amount had already been paid by them and that a much larger amount was shown as outstanding. To this, the petitioners' learned advocate has stated that when he referred the matter to his clients they informed him that the respondents used to make delayed payments and that consequently, the petitioners had adjusted those amounts against earlier supplies. This explanation is totally untenable because a court expects total honesty from the parties approaching the court and even if according to the petitioners they have a right to appropriate the payments, the requirement of law is that the receipts should not be suppressed. ( 2 ) THE respondents' learned counsel submitted that because of the institution of these proceedings and the threat of winding up as also the other proceedings, his clients had made the payments as set out in the tabulation filed with the court and that they have paid an excess amount of Rs. 42,239, even if the respondents were to concede the interest claimed at the rate of 24 per cent per annum from the date of filing of the petition up to December 11, 1998. This is an unusual application made on behalf of the respondents that the excess amount be directed to be refunded to the respondents. ( 3 ) THIS last prayer has been seriously opposed by petitioners' learned counsel on a variety of grounds. Firstly, his submission is that as per the invoices, the petitioners are entitled to interest at the rate of 22 per cent. per annum on all the transactions wherein the payments have been delayed. His contention is that, therefore, there would have to be recomputation of the agreed interest outstanding and the petitioners should be permitted to follow this procedure. Firstly, his submission is that as per the invoices, the petitioners are entitled to interest at the rate of 22 per cent. per annum on all the transactions wherein the payments have been delayed. His contention is that, therefore, there would have to be recomputation of the agreed interest outstanding and the petitioners should be permitted to follow this procedure. His submission is that the petitioners are still entitled to claim certain amounts from the respondents under the head of interest and the petitioners have asked for liberty from this court to institute appropriate proceedings for recovery of their dues. As far as this prayer is concerned, the same is allowed and the petitioners are permitted if the law justifies to institute appropriate recovery proceedings in the event of any amounts being outstanding to them. ( 4 ) ON the question as to whether in the unusual facts and circumstances of this case, it would be permissible for this court to direct the amount to be refunded, I need to record that Section 433 of the Companies Act is wide enough to permit the court in these proceedings to pass appropriate orders that are in consonance with the interests of justice. If it is demonstrated to the court that the filing of this petition has effectively resulted in an overpayment to the petitioners by the respondents, it is certainly within the powers vested in the court to direct the refund of that amount and this court is not bound to uphold the contention that the respondents should be driven to one more proceedings for recovery of the excess payment. ( 5 ) I am conscious of the fact that the petitioners have contended that they should be allowed to do a further recomputation and that for this purpose, further time should be granted. This is a petition pending since the year 1997 and it has reached finality today and I see no ground on which any further time should be granted. Furthermore, in the facts and circumstances of this case, such a procedure is unnecessary because the respondents themselves have conceded the rate of interest at 24 per cent. per annum, which is much higher than what any court would have approved of. Under these circumstances, even on a rough appraisal the petitioners have received more than a fair quantum of interest that a court would normally have approved of. per annum, which is much higher than what any court would have approved of. Under these circumstances, even on a rough appraisal the petitioners have received more than a fair quantum of interest that a court would normally have approved of. It is for this reason that I do not see any justification in permitting further computations because it is well-settled law that winding up proceedings are not to be confused or equated with recovery proceedings. ( 6 ) IN the facts and circumstances of this case, though the petitioners are afforded the liberty of enforcing whatever claim they may have subsisting against the respondents in appropriate proceedings, it is directed that the petitioners shall within a period of four weeks from today refund to the respondents the excess amount of Rs. 42,239 that has been received by them. ( 7 ) WITH these directions, the company petition to stand disposed of. No order as to costs.