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TMI Blog1966 (12) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... nce the winding-up court, jealous that its process should not be abused as a means of enforcing doubtful claims will not ordinarily adjudicate on such a question when there is a bona fide dispute, whether the dispute by the company is a bona fide dispute. If the petitioners are, in truth, creditors, I think a winding-up order should follow as a matter of course. For, they would, in that case, be creditors to whom more than Rs. 500 is presently due by the company and whose demand under exhibit P-1 dated 1st February, 1965, remained unsatisfied when this petition was brought on 10th March, 1965, and still remains unsatisfied. It is no doubt said in the counter-affidavit filed by the company that exhibit P-1 does not satisfy the requirements o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , if an application is made in that behalf, will have no defence to put forward. The company admittedly stopped business on 27th November, 1963, and has not resumed business since. There was a previous winding-up petition against the company, C. P. No. 25 of 1963, filed on 20th November 1963. That was by a Hindu joint family, whom the present petitioners 2 and 3 represent, and it was brought on the foot of the same debt that they now claim. That petition was dismissed on 9th December, 1964 and although it is said that the company was unable to resume business because of some interlocutory order made in that petition, it is pertinent to note that it has made no attempt whatsoever to resume business even after the dismissal. The present petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... selling agents of the company and, in that connection, had made an agency deposit with the company. It would appear that on 1st June, 1950, the amount of this deposit was Rs. 1,09,000 and on that day the firm wrote to the company by exhibit P-7 that they would not demand the return of this deposit until the company's liability of Rs. 2,00,000 to the Madras Industrial Investment Corporation Limited was discharged. The agency agreement is not in evidence and the terms and conditions subject to which the deposit was made are not disclosed either by the pleadings or the evidence but it would appear from exhibit P-7 that the deposit was not an ordinary loan but was a deposit payable on demand subject to the terms and conditions of the contract o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le on demand. It would appear from exhibit P-14(a), the proceedings of the board at a meeting held on 28th August, 1963, that on 31st July, 1963, the firm had written a letter to the company--the letter itself is not in evidence-and that by some agreement between the company and the firm the amounts due to the individual partners of the firm had been determined and the deposit split up between them. Accordingly, in the books of the company the amounts so due by way of principal on 1st April, 1963, and by way of interest accrued due up to 31st July, 2 963, to the three partners of the firm other than V.V. Krishnier Sons were transferred to their respective accounts--see--exhibit P-11 (a) and exhibit P-11(b), while the balance of Rs. 59,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he bona fides of this plea, that one of the principal contentions raised by the company in the previous petition, C.P. No. 25 of 1963, was that there was no debt presently due since, in view of the undertaking in exhibit P-7, the money was repayable only after the liability to the Madras Industrial Investment Corporation Limited was discharged, something that has not happened as yet. However that might be, as we have seen, there was a fresh deposit by the firm as on 27th March, 1961, free of the undertaking in exhibit P-7. This deposit was split up between the four partners of the firm and by exhibits P-11 (a) dated 1st April, 1963, and P-11(b) dated 31st July, 1963, the amounts due on that account to V. V. Krishnier Sons, Rs. 59,000 as pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the meaning of Explanation ( b) to section 18 seems to arise, for, it seems to me that when a human being who is authorised to act for a company--and a company can act only through some human being-- does so act within the terms of his authority, in other words, does something - which is intra vires, his act is the act of the company itself, not that of a mere agent. He is a limb of the company. All this apart, it is readily demonstrable with reference to the books of the company that the liability of Rs. 68,328.12 shown in the balance-sheet exhibit P-4(r) for the year ending 31st March, 1964, under the head, "Liability for other finances" includes the liability under the supense account due, as we have seen, to V. V. Krishnier Sons. That b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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