9911796707
TMI Blog1974 (3) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... , I have already rejected the preliminary objection raised by Mr. Dhanuka on behalf of the company contending that this petition is not maintainable because the petitioners have not furnished therein particulars of their debts. I have, thereafter, proceeded to hear the petition on merits. By their attorneys' letter dated 25th June, 1973, the petitioners gave the requisite statutory notice under section 434(1)( a ) of the Companies Act, 1956, calling upon the company to pay a sum of Rs. 17,428.41 due to them under bills submitted to the company for various blocks prepared and supplied by the petitioners as per the company's orders from time to time. It is an admitted position that no reply was sent by the company to the statutory notice. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w contained in Palmer's Company Law, 21st edition, page 742, the Supreme Court laid down (para. 22) that the right to a winding-up order is, however, qualified by another rule, viz ., that the court will regard the wishes of the majority in value of the creditors, and if, for some good reasons, they object to a winding-up order, the court in its discretion may refuse the order. The Supreme Court has clarified that the wishes of the creditors would be tested by the court on the ground as to whether the case of the persons, opposing the winding-up is reasonable, and in that connection the grounds furnished by the creditor opposing the winding-up would have an important bearing on the reasonableness of the case. That is also the view taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which, indeed, are the only grounds which can be available to a company where a winding-up order is sought on the basis of a statutory notice. These two contentions are : (1) that there is a bona fide dispute raised by the company in respect of the petitioners' claim which is of an unascertained amount; and (2) that the majority in number and value of the creditors of the company are supporting the company and opposing the making of a winding-up order. As far as the first of those contentions is concerned, there is no substance whatsoever in the same. First and foremost, there is no statement made by the company in its affidavit-in-reply, dated 21st January, 1974, to the effect that nothing is due to the petitioners, or to the effect th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons with the petitioners were cordial, instead of sending a written reply to the said notice, it had personally contacted the petitioners' representative, one Yusuf, and requested him to attend the company's office for verification of the bills and collect the amounts which may be found due as a result thereof. I do not believe the explanation sought to be offered by the company for its failure to reply to the statutory notice because, in my opinion, a company which in terms is threatened with a winding-up proceeding in a statutory notice would not allow the same to remain unanswered in such a casual manner as is alleged in the said paragraph 7. Moreover, what has, perhaps, the most important bearing on the question of the bona fides of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors are opposing the winding-up, the position appears to be that there are 8 creditors whose claims are of the aggregate value of Rs. 7,68,000 who are supporting the company and opposing the winding-up as against 9 creditors, whose aggregate claims amount to Rs. 3,03,862.07, who are in favour of the winding-up of the company, including the petitioners. As appearing from the authorities discussed above, it is necessary for the creditors, who support the company and oppose the winding-up, to satisfy the court that there is some good reason for that attitude of theirs. If one turns to the eight stereotyped affidavits filed by each of those creditors, all that is stated therein is that each of those creditors does not want the company to be wou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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