IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 10TH OCTOBER 2011 / 18TH ASWINA 1933 Co.Appeal.No. 44 of 2011 ---------------------------------- (AGAINST THE ORDER DATED 11.8.2011 IN COMPANY APPLICATION NO.482/2011 IN C.C.NO.557/2005 IN C.P.NO.9/2002 OF THE LEARNED SINGLE JUDGE.) APPELLANTS/APPLICANTS (S): -------------------------------------------- 1. V.V.SUKESAN, B.M.4, P & T QUARTERS, THEVARA, KOCHI-13. 2. SMT.A.S.SANTHOSHKUMARI, W/O.V.V.SUKESAN, B.M.4, P & T QUARTERS, THEVARA, KOCHI-13. BY ADV. SRI.G.HARIHARAN SRI.PRAVEEN.H. RESPONDENT(S): RESPONDENTS: ------------------------------------------------ 1. M/S.WALK-IN FINANCIAL SERVICES LTD., HIGH COURT OF KERALA, ERNAKULAM, REPRESENTED BY THE OFFICIAL LIQUIDATOR, 3RD FLOOR, COMPANY LAW BHAVAN, B.M.C.ROAD, THRIKKAKARA P.O., KOCHI-682 021. 2. DEPUTY TAHSILDAR (RR), KANAYANNUR TALUK, ERNAKULAM-682 011. 3. THE VILLAGE OFFICER, ELAMKULAM VILLAGE, ERNAKULAM- 682 020. R2, R3 BY GOVERNMENT PLEADER SRI.GITHESH. R. THIS COMPANY APPEAL HAVING COME UP FOR ADMISSION ON 10/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- Company Appeal No.44 of 2011 ----------------------------------------- Dated, this the 10th day of October, 2011 J U D G M E N T K.M.Joseph, J. This appeal is filed against the order passed by the learned Company Judge in an application filed by the appellants seeking a direction to the Official Liquidator to deduct the amount of Rs.20,000/- plus interest due to be paid to the Ist appellant on account of Chitty No.56/2001 conducted by the Ist respondent company from the amount due towards Chitty No.24/1999 taking note of the amount paid as evidenced by Annexure-V pass book and to permit the appellants to pay the balance amount due in installments. The complaint of the appellants in brief is as follows: The Ist appellant was a subscriber in Chitty No.56/2001 conducted by the Ist respondent. The Ist appellant had remitted Rs.20,000/- towards installments No.1 to 10. The total sala of the chitty was Rs.80,000/-. After payment of the 10th installments the company did not function and winding up proceedings were initiated. The Ist appellant had made a claim before the Official COA 44/2011 -2- Liquidator requesting repayment of Rs.20,000/- with interest. In the meantime revenue recovery proceedings were initiated against the appellants for realisation of a sum of Rs.52,251/- with interest at the rate of 6%. Appellants had subscribed in chitty No.24 conducted by the respondent company. They had made payments up to 29th installment. But, the total sala was Rs.1 lakh and the amount paid come to Rs.72,500/-. According to the appellants, appellants are entitled to get Rs.20,000/- and therefore appellants sought adjustment. The appellants have earlier filed C.A No.424/2011. The said application was filed without producing any documentary evidence. Subsequently appellants have filed C.A.No.482/2011. It is the said application which has been rejected by the learned Company Judge. The reason stated by the Company Judge is as follows: “Since the Company Claim has already been decreed as early as on 6.1.2007, this Company Application is not maintainable. Accordingly, the Company Application is dismissed.” 2. We heard the learned counsel for the appellants and Sri.Moni, learned counsel for the Official Liquidator. Learned counsel for the Official Liquidator points out that the appellants COA 44/2011 -3- did not seek such a claim. Without such a claim being set up, the only course open to the Company Court is to decree the amount as claimed. Learned counsel for the Official Liquidator submits that if a claim is filed in the proper form it will be adjudicated. Learned counsel for the appellants submits that appellants will file claim in the prescribed form within ten days from today. Learned counsel for the Official Liquidator further submits that the Official Liquidator will adjudicate the claim of the appellants in regard to the amount of Rs.20,000/- due to them as alleged by them and he has no objection in paying the amount decreed in installments. 3. After hearing the learned Government Pleader also we dispose of the company appeal as follows: We confirm the impugned order. However, we direct that the recovery proceedings will be kept in abeyance on condition that the appellants will pay off the entire amount in CC No.557/2005 in C.P.No.9 of 2002 in six equal monthly installments. The first installment shall be paid on or before 1.11.2011 and the remaining installments shall be paid on or before the Ist of every subsequent month. If the appellants do not remit any of the installments the appellants will forfeit the benefit of this order and it will be open to COA 44/2011 -4- the recovery authorities to proceed with the recovery. We further direct that if the appellants file claim in the prescribed form before the Ist respondent within ten days from today, the Official Liquidator will adjudicate the claim within one month from the date of receipt of the claim. (K.M.JOSEPH) JUDGE. (M.L.JOSEPH FRANCIS) JUDGE. MS