1997 (11) TMI 424 - HC - Companies Law

Summary

Issues:
Petition for compulsorily winding up under sections 439(1)(b) and 433(e) read with section 434(1)(a) of the Companies Act, 1956. Determination of liability to pay interest on goods supplied and whether failure to pay interest justifies winding up.

Analysis:
The petitioner sought winding up of the respondent-company due to unpaid debt of Rs. 7,02,322 with interest at 21% per annum. The respondent had paid a partial sum and promised to clear the balance in instalments. The key issue was whether interest was payable on the debt. The petitioner argued that interest was due as per the printed clause on invoices. However, the respondent contended financial difficulties and proposed instalment payment. The court considered the absence of a written agreement for interest payment and the respondent's partial acknowledgment of the debt.

The court examined the legal provisions regarding interest awards in cases of debt recovery. It noted the discretion of the court to award interest and the limitations on claiming interest without a prior agreement. The court emphasized that the creditor cannot unilaterally claim interest before court proceedings, as the amount remains unascertained. The court highlighted the necessity of a definite and undisputed debt for winding up orders.

Referring to a previous judgment, the court reiterated that winding up can only occur when the debt is definite, ascertained, and unpaid. It emphasized that claims based on unascertained amounts do not warrant winding up. The court clarified that the Company Court lacks jurisdiction to order payment of unascertained interest amounts. It distinguished the role of the Civil Court in awarding interest in recovery suits from the Company Court's scope in winding up proceedings.

Ultimately, the court concluded that there was insufficient evidence to declare the respondent commercially insolvent and dismissed the petition for winding up. It directed each party to bear its own costs. The judgment highlighted the importance of a clear and definite debt for invoking winding up proceedings and the limitations on claiming interest without prior agreement or court order.