9911796707
TMI Blog1975 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... oyapettah, Madras-14, is a public limited company, established for processing Chemicals and other materials for industrial and agricultural purposes among other objects set out in the memorandum of association. The company was incorporated on December 26, 1966, and the company is due and owing to the petitioner-creditor a sum of Rs. 43,343.90, being the value of goods supplied for formulation and repacking and delivery to the customers of the petitioning-creditor, which the respondent-company failed to do. A lawyer's notice was issued on September 28, 1973, calling upon the respondent-company to pay the said sum of Rs. 43,343.90. The petitioner further understands that the company is heavily indebted to the tune of Rs. 40,000 to various oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were delivered back and were properly accounted for. Instead of resolving the dispute or claims directly with the partners of Messrs. Gee Aar Traders or directly dealing with them, the petitioner is misusing the process of law by filing this petition mala fide alleging falsely that monies are due by the respondent-company to the petitioner-company. Hence, this petition is mala fide and is liable to be dismissed. Mr. Rangarajan, learned counsel appearing for the petitioner, submits before me that this is dearly a case to which section 433(3) read with section 434(1)( a ) would apply and there is a debt due by the company and merely because they have chosen to dispute, the court exercising company jurisdiction cannot throw out the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate that if a creditor, by assignment or otherwise, to whom the company is indebted in a sum exceeding five hundred rupees then due, has served on the company by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor. From a reading of the above, it is obvious that a debt must be a sum of money exceeding Rs. 500. But what is pressed into service is a definition of debt in Roland and Burrows' Words and Phrases meaning a sum payable in respect of a money demand recoverable by action. Another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he entrustment was by the petitioner. Added to this, the letter dated 17th March, 1972, stated: " they have been left in the custody and in the premises of Messrs. Vorion Industries and Chemicals Ltd. under your instructions". From all the above, it is obvious that the contract was between the petitioner and Govindaswami, who had three roles to play, viz ., (1) as a financier, (2) as a power-of-attorney agent, and (3) as managing director of the respondent-company. But, as far as the present case is concerned, he was only acting as a financier and there is no material from which it could be said that the entrustment was by the petitioner to the respondent-company. The decision in Amalgamated Commercial Traders (P.) Ltd case ( supra ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mills Ltd. s case ( supra ) , that the question whether a dispute regarding a debt is bona fide or not depends upon the circumstances of each case. The test is, whether the dispute is raised only to avoid payment of the debt and not based on a substantial ground. Bona fide dispute means that the dispute is based on a substantial ground and if such a dispute is raised, the court should refuse to make an order of winding-up, even if only a part of the debt is disputed on substantial ground. Since, as seen above, I have come to the conclusion that there has been no entrustment by the petitioner to the respondent-company, there cannot be any debt at all. Even otherwise, as to who paid for and whether the goods have been delivered back ..... X X X X Extracts X X X X X X X X Extracts X X X X
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