2000 (11) TMI 1159 - HC - Companies Law

Summary

Issues:
Petition for winding up by two firms claiming to be creditors of the respondent-company, liability of the respondent-company towards the petitioners, transposition of the Coffee Board as a petitioner, entitlement of the Coffee Board to maintain the petition under section 433 of the Companies Act, 1956, determination of the claim of the Coffee Board, arbitration as a method for resolving the dispute.

Analysis:
The petition for winding up was filed by two firms claiming to be creditors of the respondent-company, alleging a debt of Rs. 1,34,987 and Rs. 2,71,342 on account of the supply of gunny bags. The respondent-company, engaged in the business of growers and dealers in hill produce, faced labor issues and financial constraints, leading to the appointment of the official liquidator as the provisional liquidator to take charge of the company's assets. Several parties, including the Coffee Board, were impleaded in the proceedings. The respondent-company later proposed revival, improved its financial position, paid off debts, and made arrangements with the bank. The original petitioners lost interest in pursuing the winding-up petition, leading to subsequent legal actions by the Coffee Board [Para 2].

The respondent-company contested the Coffee Board's right to maintain the petition under section 433 of the Companies Act, 1956, arguing that the Coffee Board did not issue the requisite notice and was not a creditor at the time of the original petition. Disputes arose regarding the liability towards the Coffee Board, with allegations of mismanagement and financial irregularities. The Coffee Board claimed amounts due to the pooling arrangement for coffee seeds, which were subject to stock assessments and shortages after the provisional liquidator's appointment. The liability remained undetermined pending further evidence and assessment [Para 4-5].

The court deliberated on the necessity of a three weeks' notice under section 434 of the Act for a creditor to file a winding-up petition. While the Coffee Board did not issue such notice, the original petitioners had fulfilled this requirement before filing the petition. The court opined that compliance with notice requirements for transposition purposes may not be mandatory. Given the elapsed time and the Coffee Board's existing claim, directing the Board to pursue civil remedies would be impractical. The court emphasized the need to determine the Coffee Board's claim conclusively, either through evidence in court or arbitration as per the pooling agreement [Para 6].

In light of the circumstances, the court directed the Coffee Board and the respondent-company to indicate their willingness to settle the dispute through arbitration. If both parties agreed, arbitrators would be appointed for claim determination; otherwise, evidence would be recorded in court. The court set a deadline for submitting arbitration panels and scheduled the case for further proceedings [Para 8].