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Issues involved:
1. Maintainability of company petition for winding up. 2. Liability of common carrier under the Carriers Act, 1865. 3. Subrogation rights of the insurance company. Issue 1: Maintainability of company petition for winding up The petitioner, an insurance company, filed a winding-up petition against the respondent company seeking recovery of a claim amount. The respondent contested the petition, arguing that the claim should be proven in a civil suit and not through a winding-up petition. The petitioner relied on the Carriers Act, 1865, to support the maintainability of the petition under sections 433 and 434 of the Companies Act, 1956. The court emphasized that for a debt to be due and winding up to be entertained, there must be an ascertained liability, which requires adjudication based on evidence in a civil suit. The court highlighted that the report of a surveyor does not automatically establish a debt due and payable, and winding up is not an appropriate remedy in cases of bona fide disputes. The judgment cited precedents to emphasize that unless a debt is due and payable, the remedy of winding up is not available, and factual determinations can be addressed in consumer fora. The court dismissed the petition, stating that the remedy of winding up was not maintainable due to the lack of an ascertained liability. Issue 2: Liability of common carrier under the Carriers Act, 1865 The petitioner argued that under the Carriers Act, 1865, a common carrier is liable for loss or damage to goods entrusted for carriage, irrespective of proving negligence or criminal acts. Section 8 of the Act imposes liability on carriers for loss or damage caused by neglect or fraud, while section 9 states that the plaintiff need not prove negligence or criminal acts in a suit against a common carrier. Citing Supreme Court judgments, the court clarified that the burden of proof lies on the carrier to establish due diligence and reasonable care in transporting goods. The court reiterated that liability under the Act is conditioned upon negligence or criminal acts of the carrier, and the burden of proof is on the carrier to demonstrate diligence. The judgment emphasized that liability under the Act is not contingent on proving negligence and that the carrier must establish the absence of negligence. Issue 3: Subrogation rights of the insurance company The respondent raised an objection regarding the subrogation rights of the insurance company, contending that subrogation does not confer an independent right on an underwriter to maintain an action for damage to the insured property. Citing a Supreme Court decision, the court noted that subrogation does not grant the right to pursue claims independently of the insured party. However, the court did not delve further into this objection as it concluded that the winding-up petition was not maintainable for other reasons. The court allowed the petitioner to pursue its claim in the appropriate forum, indicating that the subrogation issue did not impact the dismissal of the winding-up petition.
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