A. R. Kejariwal & Another v. N. Krishnan, Administrator & Another
2005-09-23
N.KANNADASAN, P.K.MISRA
body2005
DigiLaw.ai
Judgment :- N. Kannadasan, J. The above appeal is filed as against the order dated 18.2.2005 in Tr.C.A.No.851 of 2004 in C.P.No.613 of 2000. 2. The first appellant's wife Bimala Devi along with the first appellant obtained loan from one Swarnadhara Credit Corporation Limited, which was later on merged with Lakshmi Credits Limited, which is the company in liquidation. The company in liquidation filed a, in C.S.No.732 of 1998 for recovery of a of Rs.10,47,438 together with interest at rate of 27%. Consequent to the death of Bimala Devi, the suit is filed as against the appellants 1 and 2 who are the legal heirs of the Bimala Devi. The said suit came to be filed the company in liquidation after obtaining of the Company Court in C.P.No.613 of 2000. The order of attachment was also ordered attaching the property situated at Bangalore. Subsequently, the Administrator of the Company in liquidation filed a memo wherein a direction is sought for as against the appellants/defendants in the suit to pay the suit claim, failing which the property under attachment should be ordered for sale. The learned single Judge has passed a decree as prayed for in the said memo. Aggrieved against the said order, the above appeal is filed. 3. Learned senior counsel for the appellants has submitted that even though several disputed question of facts are involved as against claim of the company in liquidation, the contents as set out in the memo filed by the Administrator was acted upon and a decree granted, which is not permissible in law. He further contended that a specific defence raised in the written statement in the above suit disputing the claim made therein and per the suit documents, the suit cannot be filed by placing reliance upon a pro-note which re resents a sum of Rs.10 lakhs, which was handed over only as a collateral security. He has further contended that the interest a claimed for certain period at the rate of 36% is usurious and contrary to the terms as agreed to between the parties and as such, the decree as ordered by the learned single Judge is liable to be set aside. 4.
He has further contended that the interest a claimed for certain period at the rate of 36% is usurious and contrary to the terms as agreed to between the parties and as such, the decree as ordered by the learned single Judge is liable to be set aside. 4. Learned counsel appearing for the respondent/Administrator contended that in as, much as the suit is transferred to the Company Court In terms of Sec.446(3), Companies Act, 1956 and in pursuance of the memo filed by the Administrator which is based upon the records maintained by the company in liquidation, the decree granted by the learned single Judge is perfectly valid in law. It is further contended that, in the absence of any materials to substantiate the plea of the appellants herein, the memo of the Administrator was acted upon and as such, the above appeal is liable to be dismissed. 5. We have considered the rival claims of the respective parties. 6. From the materials available on record, it is seen that the appellants have raised specific pleadings in the written statement filed in the suit disputing their liability to pay the suit claim. In fact, in para.5 of the written statement, a specific contention was urged to the effect that the balance amount payable by them was only meagre amount of Rs.51,354. Further, even though the rate of interest was claimed as 27% with quarterly rests on the principal due, a perusal of the statement of account maintained by the company in liquidation discloses that for the period from 31.3.1997 till 8.9.1998, the interest is claimed at the rate of 36%. The above said statement of account also proceeds about the disbursement of the loan amount in two installments by way of cheques, viz., Rs.5 lakhs and Rs.2 lakhs in all totaling to Rs.7 lakhs. However, a reference is made even in the memo filed by the Administrator to the effect that the loan was disbursed on execution of demand pro-note for Rs.10 lakhs. If that is so, prima facie it has to be presumed that the pro-note was not supported by any consideration. 7. The impugned judgment does not disclose the reasoning under which the conclusions are arrived at except by adducing a reason to the effect that the appellants are not in a position to show as to why the claims should not be decreed.
7. The impugned judgment does not disclose the reasoning under which the conclusions are arrived at except by adducing a reason to the effect that the appellants are not in a position to show as to why the claims should not be decreed. It is settled law that, the process of reasoning by which the Court came to ultimate conclusion and passed a decree should be reflected in the judgment, as held by the Apex Court in its decision in Balraj Taneja v. Sunil Madan, A.I.R.1999 S.C 3381. Hence, we are not in agreement with the reasoning of the learned single Judge in granting the decree. 8. In the light of the above, we are of the opinion that the matter requires re-consideration by enabling the parties to substantiate their respective contentions. Hence, the appeal is allowed in the following terms: (a) The order in Tr.C.A.No.851 of 2004 in C.P.No.613 of 2000 is set aside and the matter is remitted back for fresh consideration to the Company Court. (b) The Company Court is requested to dispose of the matter expeditiously by permitting the parties to adduce further evidence if any. It is open to the Company Court to either permit the parties to let in evidence before the said Court or before the learned Master. (c) Since the appellants sought liberty to file additional written statement in the suit in the light of the materials available on record, such liberty is granted. (d) We make it clear that any observation made in the present order cannot be construed as an expression of any opinion on the rival claims. 9. The appeal is disposed of in the above terms. No costs. Consequently, connected C.M.P. is closed.