1979 (5) TMI 117 - HC - Companies Law

Summary

Issues Involved:
1. Commercial Insolvency of the Company
2. Arbitration Clause in the Agreement
3. Existence of a "Debt" under Section 433(e) read with Section 434(1)(a) of the Companies Act
4. Bona Fide Dispute of the Debt
5. Procedural and Jurisdictional Arguments

Issue-wise Detailed Analysis:

1. Commercial Insolvency of the Company:
The petitioner-firm sought the winding up of the respondent-company on the grounds of commercial insolvency and just and equitable reasons. The petitioner alleged that the company had not filed its balance-sheet for the year ended March 31, 1977, and had huge liabilities. However, the company effectively countered these points, clarifying that the balance-sheet had been filed on time and that the tax liabilities mentioned were actually advance payments. The company also demonstrated that its assets were sufficient to cover its liabilities and that it was operating profitably. The court found no prima facie case of commercial insolvency, stating, "The company has given figures to show that it is carrying on its business profitably and declaring a reasonable dividend year after year and this has not been denied."

2. Arbitration Clause in the Agreement:
The company argued that the petition was not maintainable due to an arbitration clause in the agreement dated December 12, 1973. The court dismissed this contention, stating that the present petition was based on the deed of guarantee dated December 21, 1973, which was an independent document. The court noted, "The arbitration clause in the agreement does not apply to disputes, if any, in regard to the liability under the deed of guarantee."

3. Existence of a "Debt" under Section 433(e) read with Section 434(1)(a) of the Companies Act:
The company contended that no "debt" existed until it was ascertained and a decree obtained. The court disagreed, citing the Supreme Court's definition of "debt" as "a sum of money which is now payable or will become payable in future by reason of a present obligation." The court found that a debt had arisen under the deed of guarantee, stating, "A present obligation arose resulting in the accrual of a 'debt'."

4. Bona Fide Dispute of the Debt:
The company argued that the debt was bona fide disputed and cited several authorities to support this. The court examined the company's defenses and found them to be vague and unsatisfactory. The court noted, "There is no force in the contention that this court should not exercise its powers of winding up because in a suit, the creditor would be obliged to make the principal debtor and surety, parties and that would facilitate a more satisfactory disposal of all the issues between the parties."

5. Procedural and Jurisdictional Arguments:
The company filed C.A. No. 36 of 1979, arguing that the petition should be dismissed because the firm had filed a suit against the mills and the company. The court rejected this argument, stating that the filing of the suit did not affect the maintainability of the winding-up petition. The court held, "Even assuming that the suit does succeed and the firm gets a decree, it may have to proceed to execute the decree by resorting to sections 433 and 434."

Conclusion:
The court admitted the winding-up petition, finding no prima facie case of commercial insolvency or bona fide dispute of the debt. The court directed that the petitioner-firm should take no steps for publication of the citation regarding the admission of the petition for a period of three months to allow the company to file an appeal. The petition for the appointment of a provisional liquidator was adjourned to August 21, 1979.