JUDGMENT Sanjeev Prakash Sharma, J. - The Official Liquidator (hereinafter referred as 'OL') has preferred instant Company Application under Section 446 & 477 of the Companies Act, 1956 (hereinafter referred as 'the Act of 1956') stating therein that vide order dated 14/07/1995 passed by the Court in Company Petition No.01/1995, M/s. Amfort Agro Finance Limited (hereinafter referred to 'Company in liquidation') was ordered to be provisionally wound up and vide another order dated 13/01/1997, final winding up order was passed. The OL attached to this Court was appointed as Liquidator of the Company in liquidation and the properties of the Company in liquidation were deemed to be vested in the custody of this Court. 2. Mr. Sajjan Singh Rathore (respondent No.3) was Director of the Company in liquidation and furnished a list of debtors to the OL so that recovery of debts may be made. 3. In the list of debtors, which is in the shape of a register, one of the debtors has been shown as respondent no.1-Mr. Tara Chand Jat who has been stated to have been advanced loan on 22/02/1994 of an amount of Rs.1,82,760/- as principal amount with interest @12%. The loan was given for Tractor and the documents were executed by one Mr. Girdhari Singh as witness. 4. It is stated that the OL sent a notice for payment of the amount alongwith interest on 16/08/1999, however, the loan was not repaid and therefore, the proceedings under Section 446 and 447 have been initiated claiming a sum of Rs.3,05,209/- as on 21/09/1999 with interest @12% till the date of payment from the respondent. 5. Notices were issued and respondent no.1-Mr. Tara Chand Jat admitted that he had applied for loan on 22/02/1994 in his own name and also applied for loan in name of Mr. Teja Ram and Mr. Manohar and deposited margin money of a sum of Rs.47550/-, 3,700/-, 46937/- in name of Mr. Teja Ram and Rs.46937/- in the name of Mr. Manohar which totaled to a sum of Rs.1,45,124/- for purchasing Tractors. However, neither the Tractors were delivered to the respondents nor the balance amount has been repaid. Teja Ram and Mr. Manohar and deposited margin money of a sum of Rs.47550/-, 3,700/-, 46937/- in name of Mr. Teja Ram and Rs.46937/- in the name of Mr. Manohar which totaled to a sum of Rs.1,45,124/- for purchasing Tractors. However, neither the Tractors were delivered to the respondents nor the balance amount has been repaid. It has been further stated that as there was no delivery of Tractors, there was no question to pay the amount and the payment of loan was never made to the respondent no.1-Tara Chand Jat and the margin money is also lying with the Company in liquidation. It has been further stated that after depositing the money, when the respondent no.1-Tara Chand went to the office of the Company in liquidation, he found that there was no office or sign board nor any person related to Company in liquidation was there. It also came to his information that the Company in liquidation had got fire and thereafter the Company had run away from that place. It was also submitted that it is his counter claim against the Company in liquidation demanding the amount and the amount of loan was never paid to the respondent no.1 and the claim made as against the respondent no.1 was not admitted and prayer was made to dismiss the application. Alongwith reply, receipts of Company in liquidation with signatures of its Branch Manager mentioning the aforesaid amount have been placed as AnnexuresR/1 to R/5. 6. A rejoinder was filed to the reply wherein the OL contended that the respondent-Tara Chand had not submitted any document to establish that he had made representation to the Company in liquidation about non-delivery of the Tractor. Upon verification, the OL has also submitted that it was disclosed by M/s. National Motors, Jaipur that they had received a Cheque of Rs.1,82,760/-, bearing No.405037 dated 22/02/1994 drawn on the Bank of Rajasthan from M/s. Amfort Agro Finance Ltd. towards Tractor payment in the account of Mr. Tara Chand Jat S/o Mr. Boduram. Upon verification, the OL has also submitted that it was disclosed by M/s. National Motors, Jaipur that they had received a Cheque of Rs.1,82,760/-, bearing No.405037 dated 22/02/1994 drawn on the Bank of Rajasthan from M/s. Amfort Agro Finance Ltd. towards Tractor payment in the account of Mr. Tara Chand Jat S/o Mr. Boduram. After denial from Tara Chand, the OL had written a letter on 14/02/2012 to Bank of Rajasthan (now ICICI Bank) to provide details of the Cheque from where it came to information that the Cheque in favour of M/s. National Motors had been presented for payment through Central Bank of India, MI Road, Jaipur and a letter was written to M/s. National Motors on 02/05/2012 upon which they informed the OL vide their letter dated 07/05/2012 of having received the amount and, therefore, it was submitted that Mr. Tara Chand was liable to repay to the Company in liquidation the amount as mentioned in in the Company Application. 7. An affidavit was thereafter filed by Mr. Tara Chand stating that as the Tractor has not been received, he is entitled to receive back the amount which he has deposited with the Company in liquidation. 8. Thereafter, the OL submitted an affidavit in evidence in support of the Company Application and the respondent was asked to cross-examine whereafter an application was moved under Rule 9 of the Company (Court) Rules read with Order 1 Rule 10 CPC for impleading M/s. National Motors through its Director as party respondent NO.2 and the notices were issued to respondent no.2. 9. The respondent No.2 filed an additional affidavit wherein it was stated that Amfort Agro Finance Limited had financed 19 Tractors and after payment of sale price delivery had been taken by various representatives of M/s. Amfort Agro Finance Limited, some time with the customers to whom they financed the Tractor. It is stated that out of 19 Tractors, 3 Tractors were sold before selling the Tractor to Tara Chand and 15 Tractors were sold after sale of Tractor in the name of Tara Chand through financer M/s. Amfort Agro Finance Limited. The Tractors were sold for DistrictNagaur, Jaipur and Sikar. It is stated that out of 19 Tractors, 3 Tractors were sold before selling the Tractor to Tara Chand and 15 Tractors were sold after sale of Tractor in the name of Tara Chand through financer M/s. Amfort Agro Finance Limited. The Tractors were sold for DistrictNagaur, Jaipur and Sikar. It has been further stated that out of the sold 19 vehicles to Jaipur District, temporary registration number has been given to the representative of the financer and the customer and thereafter permanent registration number was received from RTO of their district. However, the permanent registration number of vehicle sold on 22/02/1994 to Tara Chand and on 25/02/1995 to Gopi Chand are not shown because the financer/customer did not supply the registration number while other permanent registration numbers of 17 vehicles were mentioned. It further stated that the information from the RTO, Jaipur could not be ascertained as the record of 22/02/1994 had been weeded out by the RTO, Jaipur. Similarly, A letter was sent to RTO, Nagaur who also replied vide letter dated 10/10/2017 that Chassis and Engine Numbers of Tractor being very old were not traceable and there is no information about the registration. 10. Another application was moved for impleading the Director Ms. Sajjan Singh Rathore as party to the proceedings as Mr. Sajjan Singh RAthore was contacted by the officials of M/s. National Motors who has stated that the receipts of delivery of Tractor are available with him. 11. On the aforesaid application moved by the respondent no.2, the then Director Mr. Sajjan Singh Rathore was impleaded as respondent no.3. An application was moved on behalf of Mr. Tara Chand to call the original loan file of Tara Chand from the record of the OL alongwith inventory list. Thereupon, the loan file of Tara Chand was produced by the OL. 12. M/S. National Motors (respondent No.2) also filed an additional affidavit wherein a challan paper has been filed wherein list of details of Tractors delivered upto 11/06/1994, wherein name of Mr. Tara Chand is available at no.3 according to which he was delivered Messy Tractor by M/s. Amfort Agro Finance Limited, purchased from M/s. National Motors after making payment of a sum of Rs.1,82,760/-. 13. An affidavit was filed by Mr. RK Meena, the then OL, who placed document Exhibit-2 which has mentioned that Tara Chand Lomroad S/o Mr. Tara Chand is available at no.3 according to which he was delivered Messy Tractor by M/s. Amfort Agro Finance Limited, purchased from M/s. National Motors after making payment of a sum of Rs.1,82,760/-. 13. An affidavit was filed by Mr. RK Meena, the then OL, who placed document Exhibit-2 which has mentioned that Tara Chand Lomroad S/o Mr. Boduram, Village Post-Dabra, Via-Moulasar, Tehsil- Deedwana (Nagaur) was advanced the loan for the Tractor. Exhibit-7 is Sub-Ledger from 01/04/1993 to 31/03/1994 which mentions Tara Chand S/o Buduram, Tractor Mela 1035 as credit sale. Exhibit-6 is a letter of M/s. National Motors to the OL of having received Cheque from M/s. Amfort Agro Finance Limited for Tractor payment in the account of Mr. Tara Chand S/o Boduram and Exhibit-8 is letter sent by M/s. National Motors to the Deputy OL informing that they had delivered Tractor to Mr. Tara Chand S/o Boduram against payment received from M/s. Amfort Agro Finance Limited with Vide Cheque No.405037 dated 22/02/1994 of Rs.1,82,760/-. 14. The OL was cross-examined by counsel for Tara Chand and it was submitted by the OL that the Register (Exhibit-2) was made available by the Ex-Director Mr. Sajjan Singh Rathore to the OL and that it is a Register of 1994 and was not prepared in his presence and he does not recognize signatures of Mr. Sajjan Singh Rathore nor he recognized signatures on each page of the Register and the suggestion that the document was prepared on 08/06/1999 was turned down. It was mentioned that the margin money of Rs.47,000/- has been mentioned in Exhibit-2 and the receipt copy is not available with the OL. The OL on crossexamination has stated that the documents were made available from M/s. National Motors in 2012, no document was regarding delivery made available to the OL as to whether the delivery was made in front of any person except Exhibit-8. 15. Mr. Sajjan Singh Rathore was also cross-examined who stated that the Tractor was handed over to Mr. Tara Chand by M/s. National Motors and he does not know whether the vehicle's registration was done or not. He cannot say that the Tractor was handed over to Mr. Tara Chand but assets that the Tractor was given to Mr. Tara Chand. He stated that he was not present at that time but was informed by his team that the Tractor had been handed over. He cannot say that the Tractor was handed over to Mr. Tara Chand but assets that the Tractor was given to Mr. Tara Chand. He stated that he was not present at that time but was informed by his team that the Tractor had been handed over. It was further stated that the Special Team of CID CB had conducted detailed inquiry and it had been informed about the Tractor having been given to Tara Chand but he admits that the record was available in his office but the same had been misplaced during the investigation conducted by the Police. After having been released from the Jail, he had handed over the documents to the OL. As regards the details of the Tractor, the same were available with M/s. National Motors. On a crossexamination by the counsel for M/s. National Motors, Mr. Sajjan Singh Rathore stated that the owner of the vehicle did not get the registration done at their level and the documents were taken by the Manager of the Company at the time of delivery of the Tractor. 16. Having recorded the above, learned counsel for the OL submits that from the documents (Exhibit-1 to Exhibit-8), it is proved that there has been a loan advanced. The loan was disbursed through Cheque to M/s. National Motors and the delivery of the Tractor was made to Mr. Tara Chand and, therefore, the ledger account of M/s. National Motors wherein the Chassis Number, Engine Number and Registration Number of the vehicle had been mentioned. It is submitted that the entire loan file of Mr. Tara Chand also shows that he had applied for loan and from the reply of respondent No.3, the charge-sheet filed by the Police and investigation conducted, it is clear that the vehicle has been delivered to Tara Chand. It is submitted that Mr. Tara Chand surprisingly not filed any complaint to any quarter nor has lodged FIR either against the Company in liquidation or against M/s. National Motors. Although he has alleged to have paid a substantial amount as margin money and therefore, the amount was to be recovered from Tara Chand. 17. M/S. National Motors has also filed their written submissions reiterating what has been noted above and submitted that the Engine Number and Chassis Number are the numbers of the Tractor which was delivered to Mr. Although he has alleged to have paid a substantial amount as margin money and therefore, the amount was to be recovered from Tara Chand. 17. M/S. National Motors has also filed their written submissions reiterating what has been noted above and submitted that the Engine Number and Chassis Number are the numbers of the Tractor which was delivered to Mr. Tara Chand as is evidence from Annexure-AA-2/2 and as the numbers can never be the same of two vehicles, it is clear that Mr. Tara Chand is in possession of the Tractor. It is also stated that neither Mr. Tara Chand or Tejaram or Manohar ever claimed margin money nor they lodged FIR which clearly shows that Mr. Tara Chand is defaulter and is giving a false statement. 18. The respondent No.1-Mr. Tara Chand has also submitted written submissions and stated that in the additional affidavit of Mr. Puran Chand, the registration number of the vehicle, alleged to have been handed over to respondent no.1-Tara Chand, is not mentioned. The loan amount was never handed over to the respondent No.1 and it has not been proved that the Tractor was handed over to respondent No.1. It is stated that Mr. Sajjan Singh Rathore, the then Director of the Company in liquidation remained in Jail for 22 months and the documents relating to Tractor were kept in the office of the Company and thus, if there were papers of Tractors available in the office of the Company, then they should have been placed on record before this Court. The allegation of name of the respondent-Tara Chand in the criminal case is only on the basis of the statement of accused-Sajjan Singh Rathore and there is no corroboratory evidence. It is submitted that there is neither registration certificate nor delivery receipt having signatures of Mr. Tara Chand is available. It is stated that both i.e. the OL or respondent No.2 never came forward to cross-examine the respondent no.1 who filed his affidavit and therefore, the statement of respondent no.1 cannot be doubted. Learned counsel has also relied on order passed in another Company Application No.13/2000 (The Official Liquidator Vs. Shri Chandra Ram Sohu & ors), decided on 16/12/2016 wherein the application under Section 446 was rejected. 19. Learned counsel has also relied on order passed in another Company Application No.13/2000 (The Official Liquidator Vs. Shri Chandra Ram Sohu & ors), decided on 16/12/2016 wherein the application under Section 446 was rejected. 19. After hearing learned counsel for the parties as well as after going through the documents which have come on record, while there remains a mention of a particular Tractor having been shown to have been sold in the name of Mr. Tara Chand, on the basis of loan and cheque amount received from Amfort Agro Finance Limited, Jaipur (the company in liquidation) as detailed out herein above, this Court does not find any proof that the Tractor was handed over in possession to Mr. Tara Chand. 20. In the case of Official Liquidator Vs. Shri Chandra Ram Sahu (Supra), the legal representatives of Chandra Ram Sahu denied having received the loan amount alleged to have been paid to him on the basis of the details mentioned in the register with the Company in liquidation prepared by Mr. Sajjan Singh Rathore in the register of debtors. Therein, the amount had been advanced to one M/s. Laxmi Enterprises under Cheque No.636971 dated 28/03/1994 on 04/04/1994. A predeposit margin money of Rs. 6635/- was also mentioned wherein this Court observed as under:- "From the material on record, it is not at all established that the sum of Rs.26,571/- was advanced to the respondent by the company in liquidation for purchase of agricultural equipment or that payment was made on his behalf to M/s. Laxmi Enterprises. No receipt of the respondent with regard to the loan allegedly advanced to him has been adverted or to placed before this Court. No instructions of the respondent to make payment to M/s. Laxmi Enterprises for purchase of agricultural equipment placed on record. The case of the O.L. in rejoinder is different from the one setup in the application filed in the first instance. In the rejoinder the OL's case is that the loan amount in issue was not made over to respondent himself but paid on his behalf to M/s.Laxmi Enterprises. As noted earlier no authorization to the company in liquidation by the respondent to make payment on his behalf to M/s.Laxmi Enterprises obtains on the record. In the rejoinder the OL's case is that the loan amount in issue was not made over to respondent himself but paid on his behalf to M/s.Laxmi Enterprises. As noted earlier no authorization to the company in liquidation by the respondent to make payment on his behalf to M/s.Laxmi Enterprises obtains on the record. Further in any event the quotation purportedly submitted by the respondent following which the cheque No.636971 dated 28.03.1994 was made over by the company in liquidation at the relevant time to M/s.Laxmi Enterprises was by M/s.Laxmi Traders. How yet payment was made to M/s. Laxmi Enterprises is not clear nor explained. Quite apparently the two entities are different and distinct. There is nothing on record by way of a document nor even averred in the pleadings to establish that M/s.Laxmi Traders and M/s. Laxmi Enterprises were/are the same entity. I am of the considered view that, in the facts of the case setup, the petitioner cannot succeed on the test of preponderance of probability. In fact there is no evidence at all for this application under Section 446/477 of the Act of 1956 to succeed. I find no force in this application. Dismissed." 21. In the present case also, the OL had set up a case that the loan was advanced to the respondent no.1. Later on, it was stated that the amount was advanced to M/s National Motors who in turn handed over the Tractor to the respondent no.1. The respondent no.2 has stated that it is the Manager of the Company to whom the Tractors were handed over for further handing over to the concerned loanees. The respondent no.3-Mr. Sajjan Singh Rathore had vaguely stated of the Tractor having been handed over to Mr. Tara Chand although he stated that this is information received by him from his staff. While he submitted that the original documents of the Tractor are with the Company, he vaguely stated that the documents have been disturbed during the Police investigation. While respondent No.1-Mr. Tara Chand has filed his affidavit, neither counsel for the OL nor the other respondents crossexamined him. The statement, therefore, remains inimpeached. In view thereof, it cannot be said that the OL has been able to prove that the loan was advanced in favour of respondent No.1-Mr. While respondent No.1-Mr. Tara Chand has filed his affidavit, neither counsel for the OL nor the other respondents crossexamined him. The statement, therefore, remains inimpeached. In view thereof, it cannot be said that the OL has been able to prove that the loan was advanced in favour of respondent No.1-Mr. Tara Chand and handed over to him nor has been able to prove that the Tractor was handed over by M/s. National Motors to respondent No.1-Mr. Tara Chand, of-course the amount was delivered by Cheque in favour of M/s. National Motors. No recovery proceedings have been initiated as against M/s. National Motors nor it is a case where any Tractor was recovered from the possession of respondent No.1-Mr. Tara Chand. Merely on the basis of the statement of respondent No.3-Mr. Sajjan Singh Rathore in Police proceedings, it cannot be presumed that the Tractor was delivered to the respondent No.1-Mr. Tara Chand. The contention of respondent No.1-Mr. Tara Chand that he had not further proceeded after he came to know about the condition of the Company in liquidation is understandable and acceptable. The claim of respondent No.1-Mr. Tara Chand as against the Company in liquidation is also found to be stale and old and is rejected. It is settled law that suspension cannot take place of proof. 22. In view of what has been discussed herein above, the proceedings initiated as against the respondent No.1-Mr. Tara Chand are held without sufficient and ample proof of payment of loan to him and therefore, the proceedings under Section 446 & 477 of the Companies Act, 1956 are dropped and the instant Company Application is rejected. No costs.