9911796707
TMI Blog1967 (8) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ce of demand under clause ( a ) of section 434(1) of the Companies Act upon the company, and it is common ground that the company has not paid their claim within three weeks from the service of the said notice. The petitioners have, therefore, filed the present petition for the winding-up of the said company by the court. Mr. Mody, who appears for the company, applies for an adjournment of the hearing of the petition for a period of eight weeks in order to enable the company to arrive at some compromise or arrangement with its creditors" for payment of their claims. This application has been stoutly opposed by Mr. Nariman for the petitioners who has contended that, once a clear case for the winding up of a company is made out, the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that discretion by the trial court. It is true that that contention was negatived by the appeal court on the ground that, on the facts of the case before it, there was no answer whatsoever to the allegations made by the petitioners, and if those allegations were admitted, the only order that could be made was an order for winding-up. There is, however, a difference between the question as to whether an appeal court should interfere with the discretion exercised by the trial court on the facts of a particular case, and the wider question as to whether, in a matter which must depend on the facts of each particular case, one case could be an authority for another. It is no doubt true, as Mr. Nariman has contended, that the facts in Bachharaj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce in so far as there is a material difference on facts between the said case and the present case in regard to the same. The point is, as Mr. Mody pointed out, that in Bachharaj Factories case ( supra ) the appeal court proceeded to consider how the shareholders and the creditors were arrayed on either side in regard to the question as to whether a winding-up order should be made or an adjournment granted. The figures mentioned in the judgment of the appeal court show that creditors worth about Rs. 1 crore and 23 lakhs were on the side of the petitioners and desired a winding-up by the court, whereas, apart from the shareholders who were all members of a particular family in Bachharaj Factories case ( supra ) depositors and creditors ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is taken into consideration, it is apparent that the present case does not call for the same order as was made by the appeal court in Bachhraj Factories case ( supra ). It was pointed out by the appeal court in Bachharaj Factories case ( supra ) that the learned trial judge had taken four other factors into consideration, and the appeal court proceeded to deal with each one of them. It is necessary for me to refer only to one of them, and it is that the adjournment in that case was sought for the purpose of filing what the appeal court considered to be a ''hopeless suit" challenging the validity of the debenture under which the petitioner claimed to be a creditor of the company. As already stated by me above, the adjournment sought in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd is prepared to give a further undertaking that it would call a meeting of its creditors within such period as the court may specify. On these facts, having regard to the small amount of the claim of the petitioners, and having regard to the fact that there is no other creditor of the company who is pressing for an immediate winding-up order, as well as the fact that I do not consider the attempt of the company to settle with its creditors to be in the nature of a hopeless attempt, I feel that, unlike the conclusion to which the appeal court came in Bachharaj Factories case ( supra ) , this is a fit case in which the company should be given a chance to settle with its creditors. Such a course would be advantageous both to the company as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
