Quashed

The Official Liquidator v. Sumer Singh

Rajasthan HC21 Jan 2020COAP/112/2010

Case brief

AI extract

What is this about?

The High Court of Rajasthan quashed proceedings under Section 446 of the Companies Act, 1956. The Official Liquidator failed to prove that the respondent, a specific individual named Sumer Singh s/o Hari Singh, was the borrower. Lack of documentary evidence regarding the specific account number and insufficient proof of identity meant the initiator could not discharge the burden of proof.

What did the court decide?

The company application filed under Section 446 of the Companies Act, 1956 is dismissed; pending applications are also dismissed.

The Official Liquidator Vs Sumer Singh — Company and Corporate | Rajasthan HC (2020)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Company Application No.112/2010

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S.B. Company Petition No.1/1995

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The Official Liquidator of M/s Amfort Agro Finance Ltd. (In Liqun.) Attached to Rajasthan High Court, B/75-A, Rajendra Marg, Bapu Nagar, Jaipur

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----Petitioner

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Versus

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Sri Sumer Singh, Rani, District-Pali (Rajasthan)

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----Respondent

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For Petitioner(s) : Mr. Gaurav Sharma with Mr. U.S. Patole, Official Liquidator For Respondent(s) : Mr. V.S. Rathore

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Judgment

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21/01/2020

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This application has been filed by the Official Liquidator for recovery of amount from the loanee-Sumer Singh with regard to the loan advanced by the company in liquidation namely M/s. Amfort Agro Finance Ltd. under Section 446, 477 of the Companies Act, 1956 (hereinafter referred as ‘the Act of 1956’). Notices in this regard were issued. However as Sumer Singh the account holder shown in the account book of the M/s. Amfort Agro Finance Ltd. was not traceable, the police officials of Tehsil Rani District Pali were directed to produce Sumer Singh whereafter Sumer Singh s/o Hari Singh put up his appearance through his counsel and filed reply.

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In the reply, the respondent-Sumer Singh s/o Hari Singh has stated that he has never taken any loan from M/s. Amfort Agro

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(2 of 5) [COP-1/1995]

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Finance Ltd. and the notice have been wrongly served upon him and he is not the person whose name has been entered in the account and in whose name the amount has been given by cheque of Rs.1 lakh.

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The parties were thereafter directed to produce their evidence. Learned Official Liquidator has placed documents marked as Exhibit 1 to Exhibit 6 in support of his contention. Statement of Official Liquidator was recorded and crossexamination was conducted. In defence the respondent-Sumer Singh has also supported his affidavit alongwith the documents marked as Exhibit P-1 to Exhibit P-9. The respondent was also cross-examined.

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Learned counsel for the Official Liquidator has vehemently argued that the respondent is the person to whom the loan was advanced and is the same Sumer Singh which has been shown to have been given loan of Rs.1 lakh as per Exhibit P-6. The cheque no.453151 issued by Bank of Rajasthan was encashed and received in the account of State Bank of Bikaner and Jaipur (SBBJ), Falna on 25.5.1994. Learned counsel has taken this court to Exhibit P-1 to show that the said amount was cleared at SBBJ Service Branch on 20.5.1994. Vide Exhibit 2 learned counsel supports his submission that the cheque was lodged in collection for Sumer Singh at Tehsil Rani District Pali from Falna Branch which was drawn on Bank of Rajasthan. Exhibit -2 is the certificate issued by the Branch Manager of SBBJ. He also relied on Exhibit 3 whereby the SBBJ has informed the Official Liquidator of the statement of account of respondent-Sumer Singh from 2001-2009 and Exhibit -5 letter written by the concerned office of Nagar Palika Mandal Rani District Pali to submit that there was a plot

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(3 of 5)

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[COP-1/1995]

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purchased by Sumer Singh in favour of his wife on 26.2.1991 and thus, the respondent was living at Rani itself. Learned counsel submits that in view of the documents, it is apparent that the statement being made by the respondent that he is not the same person Sumer Singh to whom loan was advanced of Rs.1 lakh is false and actually he has utilized the said amount for the purpose of his personal use.

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Per contra , learned counsel for the respondent-Sumer Singh has taken this court to the document which he has exhibited to support that he is not the same person to whom the loan was advanced. Material documents which he has relied upon are Exhibit P-1 to which is the statement of SBBJ, Falna for the period from 1989-2001 where there is no mention of any cheque of amount of Rs.1 lakh received in the account of the respondent. He has also relied upon Exhibit P-9 to submit that the documents Exhibit -5 where it is mentioned that the registered documents of the plot of his wife-Smt. Parwati Kanwar are of 26.2.1991, has been erroneously mentioned and actual date of purchase of plot is 7.2.2001. Learned counsel further submits that in crossexamination of the Official Liquidator which has been admitted by the Official Liquidator that there is no document available with him to show that Sumer Singh s/o Hari Singh was the person to whom loan was advanced. He has also argued that the Official Liquidator has stated that the details of Sumer Singh were informed to him by the concerned SHO that Sumer Singh s/o Hari Singh is the same person to whom the loan was advanced. Thus, learned counsel submits that there is no documentary evidence on record to prove that the respondent was the same person to whom the loan was advanced and therefore the proceedings initiated under

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(4 of 5)

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[COP-1/1995]

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Section 446 of the Act of 1956 as against the respondent-Sumer Singh are wholly illegal and deserves to be dropped.

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I have considered the submissions, the documents which have come on record and the statements. In the statement made by the respondent-Sumer Singh, he has specifically stated that he has not taken any loan from M/s. Amfort Agro Finance Ltd. either by cash or by cheque. He has further specifically stated that neither he nor any of his children have done any agriculture activity and he was originally living at village Barwa Tehsil Bali and has shifted his family to tehsil Rani District Pali in 2001 after he purchased a plot on 7.2.2001. His name is Sumer Singh s/o Hari Singh respondent while from the account book-Exhibit -6 of the company in liquidation.

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This court finds that the loan has been advanced to one Sumer Singh whose father’s name is not mentioned. The loan has been advanced for agriculture purposes at Rani District Pali. Thus, from the documents which are available on record relating to the company in liquidation, it cannot be said that it is Sumer Singh s/o Hari Singh to whom the loan has been advanced. This court is further of the view that the Official Liquidator has not been able to prove that the amount of Rs.1 lakh was actually deposited in the account of respondent – Sumer Singh s/o Hari Singh. The Exhibit -1 relied upon by the learned counsel for the Official Liquidator does not mention the account number where the amount of Rs.1 lakh has been deposited. Similarly, the Exhibit -2 also does not mention the account number of Sumer Singh of Falna Branch of SBBJ where the amount has been stated to be deposited.

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While this court is satisfied that the document Exhibit P-1 produced by respondent exhibited by the respondent cannot be

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(5 of 5)

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[COP-1/1995]

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said to be his statement of account, however, it appears to be a document of SBBJ, Falna mentioning of the various amount which were deposited in various years in the account no.5142 of Sumer Singh s/o Hari Singh. This document seems to be an internal document of the bank where there is also mentioning of audit conducted in 1989, 1991 and 1995. However, the said document does not mention of any amount of Rs.1 Lakh having been entered in the account no.5142 of Sumer Singh. The statement of account attached to Exhibit P-2 of Sumer Singh s/o Hari Singh mentions of account no.51045044334 which is from 2005 to 2009. Official Liquidator has not placed the documents for the period of 20012005 with Exhibit P-2. Thus, it is apparent that the cheque of Rs. 1 lakha has not been deposited in the account of Sumer Singh s/o Hari Singh.

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In view thereof, the contentions of the respondent that he is not the same person to whom the loan has been advanced as shown in the account books of the company in liquidation, is found to be correct and the Official Liquidator has been unable to prove that the amount was deposited in the account of the respondentSumer Singh s/o Hari Singh. In view thereof, the proceedings initiated under Section 446 of the Act of 1956 as against the respondent-Sumer Singh are found to be vitiated. The same are accordingly quashed.

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Accordingly, the company application stands dismissed. All pending applications shall also stand dismissed.

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(SANJEEV PRAKASH SHARMA),J

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Karan Bhutani /531/4

The Official Liquidator v. Sumer Singh

Case brief

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The Official Liquidator v. Sumer Singh

Case brief

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