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TMI Blog1944 (5) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... o were removed for committing certain irregularities in the course of their employment. The company did not deny that the sums as demanded by the appellants were originally due. It was, however, strenuously contended on its behalf that unless the appellants disgorged the amounts illegally received by them, they were not entitled to recover the sums due to them. In fact, a resolution was in due course passed by the company calling upon the appellants to refund the amounts so received. Council for the appellants insists that even if the refusal of a company to pay the amounts due is occasioned by circumstances existing in the present case, it shall have to be declared that the company is unable to pay its debts within the meaning of Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in bankruptcy, decided that there was not enough in the statute to show that the power conferred must be exercised whenever the estate is shown to be insolvent, and it was consequently a discretionary power which the Court might refuse to use. Following the decision of the House of Lords in the preceding case, it was said that from the nature of the English Language the word 'may' can never mean 'must', that it is only potential, and when it is employed, there is another question to be decided, viz., whether there is anything that makes it the duty of the person on whom the power is conferred to exercise that power. If not, the exercise is discretionary." These observations apply with full force to the case before us. Even otherwise, I am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pass by without notice, to omit by carelessness. Has such neglect been proved in the present case against the company? The answer cannot but be in the negative. It has not ignored the claim advanced by the appellants. It has on the other hand fully applied its mind to it and resisted it on grounds which to any prudent man Would appear to be altogether justified and reasonable. It is not disputed that the Inspectors appointed by the Central Government to investigate into the affairs of the company implicated the present appellants in very serious irregularities alleged to have been committed by them in the course of their employment and it was on that account that the sums due to them were withheld. There thus existed a bona fide dispute be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the company actually deposited the amounts claimed by the two appellants in Court and placed them at their disposal if and when they obtained an order from a competent Court as to their right to recover them This being so, it would be a sheer perversion of language to urge that the company is unable to pay its debts. There is another aspect of the case, too, which deserves consideration. The issues arising in these proceedings are not so simple as they are represented to be. Complicated questions of fact and law are bound to crop up and their decision Would necessarily protract these proceedings Even the appellants would, if they So chose, be in a position to prolong them unnecessarily. Such are the uncontrollable vagaries of civil l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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