The Official Assignee v. S. Arjunlal Sunderdas

Appln.No. 228 of 2016 in I.P. No. 25 of 2014 Dr.G.JAYACHANDRAN , J.

& C.V.KARTHIKEYAN, J.

This application had been filed by the Official Assignee seeking a Judgment and Decree against the second respondent, directing the second respondent to pay a sum of Rs.8,00,000/- with interest at 18% p.a from 21.04.2014 till date of realisation with cost of the recovery proceedings.

2. The Official Assignee had stated the second respondent had received a sum of Rs. 8,00,000/- from the first respondent/insolvent Arjunlal Sunderdas, which was shown as due and outstanding as on 21.04.2014. It was also stated that this amount was reflected in the accounts. There has been no subsequent transaction to prove discharge. The Official Assignee had issued notice dated 16.03.2016 calling upon the second respondent to pay the amount.

3. Notice had been directed to the second respondent. He also filed a counter affidavit.

4. In the counter affidavit, it had been stated that the second respondent had lent a sum of Rs.23/- lakhs to the insolvent on 16.07.2005 returnable with interest at the rate of 12% per annum. The insolvent had executed two promissory notes. It was stated that the

insolvent repaid only Rs.20/- lakhs upto 21.08.2009 and thereafter, he did not pay any amount. In the meanwhile, the debt had become time barred. It had been stated that he had no other transactions with the insolvent. He denied that he was due and liable to pay a sum of Rs.8/- lakhs to the insolvent. It was stated that the application should be dismissed.

5. Evidence was directed to be taken. Accordingly, on the side of the applicant, R.Padma, Sub Assistant Registrar (SAR) attached to the office of the Official Assignee, High Court, Madras, filed proof affidavit and was examined as PW-1. She filed Exs. A-1 to A-6. Ex.A-1 was the true copy of the relevant pages from the report of the Auditor Ranga Ramanujamxd, dated 16.02.2016, concerning the 2nd respondent herein; Ex.A-2 was the true copy of relevant page from the report of the Auditor "Annamalai Associates", concerning the 2nd respondent herein; Ex.A-3 was the true copy of the demand notice dated 16.03.2016 sent by the Official Assignee to the 2nd respondent herein along with the true copy of the acknowledgment; Ex.A-4 was the true copy of the objection counter filed by the 2nd respondent in A.No. 99 of 2016; Ex.A-5 was the true copy of the schedule of affairs dated 24.05.2014 concerning the respondent herein; and Ex.A-6 was the true copy of the relevant bank entry for the period from 01.07.2007 to 31.03.2009.

6. The matter was listed for cross examination of PW-1 on

02.12.2021 and again on 07.04.2022. On that date, it was noted that the matter was pending for cross examination of PW-1 from 15.11.2018. Further, opportunity was granted for cross examination on 21.04.2022. On that particular date though the witness was present, there was no representation on behalf of the respondent and since he had not come forward to cross examine the witness, the evidence was closed.

7. The matter then posted before this Court on 26.07.2022. The respondent was called absent and was set exparte.

8. Heard arguments advanced by Mr.K.V.Anantha krushnan, learned counsel on behalf of the Official Assignee.

9. The documents produced particularly Exs.A-1 & A-2 reflect that the second respondent was due decreed and payable a sum of Rs.8/- to the estate of the insolvent. A notice had been issued by the Official Assignee under Ex.A-3 on 16.03.2016. The second respondent had filed his objections but had not come forward to substantiate the same. Ex.A6 had been produced which was the bank statement for the period 16.01.2008 and 31.01.2008. It is also seen that the due of the second respondent is reflected in Ex.A-6 on the date 22.08.2008.

Dr.

G. JAYACHANDRAN , J.

& C.V.KARTHIKEYAN J, vsg

10. The learned counsel for the Official Assignee insisted that the available documents had been produced and that the second respondent had not come forward to dispute the said documents or to cross examine the witness.

11. In view of these facts, which have not been controverted, this Application is allowed and a decree is passed accordingly as prayed for with costs.

(Dr.G.J.J.,) (C.V.K.J.,) 16.08.2022 vsg Pre-delivery order made in Appln.No. 228 of 2016 in I.P. No. 25 of 2014