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TMI Blog1930 (8) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ents of Costello, J., sitting as Judge of first instance and also of Rankin, C.J., and C.C. Ghose, J., dismissing an appeal against the decision of Costello, J. A pedigree of the Manna family has been tendered in this application and I incorporate it in my judgment: Long and bitter family disputes arose concerning the administration and distribution of the estates of Mahesh and Debendra, and in 1915, Rabindra instituted a partition suit on the Original Side of this Court, asking for the administration and partition of those estates. After a fruitless reference to aribtration, a consent decree was made on January 6th, 1922. The terms of settlement are thus summarized in the judgment of Rankin, C.J.: "The main outline of the terms of settlement was as follows: that the properties left by Mahesh and the properties left by Debendra were to be treated as one joint estate, Sudhirendra and his three brothers being, between them, entitled to a one-seventh share thereof; that the parties were all to lease out their interest in the properties set out in the schedule for 99 years, at a monthly rent of Rs. 770 to a Joint Stock Company in process of formation to be called the Janbaza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany is peculiar. It is not denied, as far as I understand, that, up to April of this year, Rabindra was the managing director and Satindra the secretary. These two gentlemen support Surendra; and Mr. Sett also appears on behalf of the company, as he claims, to support the petition. He can, however, only represent the company if Rabindra and Satindra are still managing director and secretary respectively. Mr. S.M. Bose also claims to represent the company and oppose the application, as it is claimed that, on April nth, 1930, a general meeting was validly held and a resolution passed removing Rabindra and Satindra and appointing Nagendra and Kshitindra in their places. I have not been asked to decide whether this resolution is valid. The application is also opposed by Mr. Page on behalf of Ranendra and other shareholders. I will now proceed to deal with the allegation that the company is unable to pay its debts. The petitioners claim the benefit of the presumption created by section 163( i ). The statutory demands are dated April 5th, 1930, and are addressed to the company at No. 2, Circular Road, Taliganj, Calcutta. Their receipt is evidenced by an endorsement by Satindra of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he company is unable to pay its debts, and I suppose that failure to pay an undisputed debt would be, as a rule, conclusive evidence of this. Mr. Page, however, maintains that neither debt is undisputed. With regard to the debt of K.K. Dutt and Co., he does not question the fact or the conclusiveness of the taxation, but he points to allegations in the affidavits used in opposition to the application to the effect that, while acting for the company, the firm has drawn large sums from the company and that, owing to the obstructive attitude adopted by the former secretary, Satindra, in collusion with the petitioners, the other shareholders have not been able to go into the account and are, therefore, not in a position to admit the attorneys' claim. In reply, an affidavit by the cashier of the firm has been used, alleging an adjustment of March 31st, 1930, made with the secretary, Satindra, at which all sums paid on any account whatever to the firm were taken into consideration and the balance now claimed settled. Mr. S.C. Roy describes this so-called denial of firm's claim as evasive, and I myself do not consider it to be wholly satisfactory. There are, however, certain aspects, of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t finds a place among the objects for which the company was incorporated is sufficient to make it a debt upon .the non-payment of which an application to wind up can properly be grounded. Mr. Page also indicates that if it is a debt, there are questions of limitation to be considered. This being so, I hold that the petitioners have not succeeded in showing that the company is unable to pay its debts within the meaning of section 162 (v) of the Act. It remains to be considered whether it has been shown that it is just and equitable that the company should be wound up within the meaning of sub-section ( vi ). I am in no position to say what would have been the most satisfactory way of dealing with the partition suit, but it is now reasonably evident that the formation of the family company has not proved a successful solution, but that, of itself, is no reason for winding up. To bring the company within the "just and equitable" clause it must, I think, in this case, be shown that the substratum of the company has gone, or that a deadlock has arisen in the sense that it is now impossible for the company to carry, out the objects for which it was formed. The substratum of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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