Leave granted.
In a Winding Up proceeding, it was alleged that the respondent company was
required to pay an amount of Rs.3,17,352/- to the appellant. It appears that on being
provisionally appointed the Official Liquidator went to the premises of the
respondent-company to take possession thereof. Thereafter, the respondent filed an
application before the Company Judge for recalling the order of appointment of the
Official Liquidator on the ground that the respondent-company had already paid the
principal amount and that only the question of interest remains to be decided. The
matter was heard by the Company Judge, who
also recorded the said fact and having regard to the provisions of the Delayed
Payments to Small Scale and Ancillary Industrial Undertakings Act, 1993, directed the respondent to pay to the appellant interest on the principal amount @ 9 per cent
per annum, with liberty to the appellant herein, to move the civil court in order to
establish its claim under the provisions of the aforesaid Act. An appeal was
preferred by the respondent herein before the Division Bench, which modified the
order of the learned Company Judge by withdrawing the leave granted to the
appellant to move the civil court for claiming higher interest.
Having heard learned counsel for the respective parties, we are of the view
that the Division Bench committed an error in withdrawing the liberty which had
been granted by the learned Company Judge, to approach the civil court, having
particular regard to the provisions of Section 4 of the aforesaid Act of 1993.
We, therefore, allow the appeal and modify the order of the Division Bench of
the High Court impugned herein by restoring the liberty which had been granted by
the learned Company Judge to the appellant to move the civil court for
higher interest. The appellant will be at liberty to move the civil court in terms of
the liberty granted by the Company Judge.
New Delhi, January 06, 2009.