2000 (11) TMI 1132 - HC - Companies Law

Summary

Issues:
Petition for winding up by two firms claiming to be creditors, appointment of provisional liquidator, transposition of Coffee Board as petitioner, liability dispute, arbitration option.

Analysis:
The petition for winding up was filed by two firms claiming to be creditors of the respondent company engaged in the business of growers and dealers in hill produces. The firms claimed the company was indebted to them for the supply of gunny bags. Upon the petition, the respondent company faced labour trouble and financial difficulties, leading to the appointment of the Official Liquidator as the provisional liquidator to take charge of the company's properties. Several interested parties, including the Coffee Board, were impleaded in the petition. The company later proposed revival, improved its financial position, paid off debts, and made arrangements with the bank. The original petitioners lost interest in prosecuting the winding up petition, and the Coffee Board sought to be substituted as the petitioner, leading to a series of legal proceedings and appeals.

The main contention of the respondent company was that the Coffee Board was not entitled to maintain the petition as a creditor under the Companies Act, as no notice was issued, and any liability arose after the original petition. The Coffee Board claimed amounts due to the pooling arrangement, with a reported shortage of coffee stock worth lakhs. The liability dispute centered on the responsibility for the shortage and damage to the stock. The Court noted that evidence was lacking to fix liability, but acknowledged the Coffee Board's claim against the company.

Regarding the requirement of a three weeks notice under section 434 for a creditor to file a winding up petition, the Court found that the original petitioners had complied by sending a notice before filing the petition. The liability could be said to have arisen after the petition due to the pooling arrangement, justifying the Coffee Board's claim. The Court held that the Coffee Board, as the substituted petitioner, was entitled to pursue the petition, and directed both parties to choose between arbitration or evidence recording in Court to determine the liability. The parties were given a deadline to decide on arbitration, with a subsequent hearing scheduled.

In conclusion, the Court directed the parties to decide on arbitration for settling the dispute or proceed with evidence recording in Court to determine the liability. The case was postposed to allow the parties to submit panels of arbitrators if they opted for arbitration.