9911796707
TMI Blog1975 (5) TMI 51X X X X Extracts X X X X X X X X Extracts X X X X ..... any to the petitioning-company. It was stated in paragraph 6 of the winding-up petition that a sum of Rs. 49,600 had been deposited with the respondent-company on August 1, 1969, as per receipt No. 279. The same was renewed, the respondent-company issuing receipt No. C. 305 dated March 15, 1971, for Rs. 49,600. The still earlier deposit of Rs. 40,000, to start with, as per receipt No. 214 dated June 12, 1967, was not mentioned. This amount is said to have been paid by cheque No. 474014, dated June 12,1967, drawn by the petitioning-company in favour of the respondent-company and on the New Bank of India Ltd , Janpath. According to paragraph 7, the petitioning-company had also deposited Rs. 1,24,000 with the respondent-company as per deposit receipt No. C. 280 dated November 30, 1969, for a period of 12 months. The said deposit was renewed by the petitioning-company and the respondent-company then issued receipt No. C. 306 dated March 15, 1971, for the said amount of Rs. 1,24,000 as being due and payable on November 30, 1971. The still earlier deposit of Rs. 1,00,000 as per receipt No. 231 dated November 30, 1967, was not mentioned. On both the said sums, total amount of principa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C. 306 dated March 15, 1971 (in respect of the former) and receipt No. 279 dated August 1, 1969, and No. C. 305 dated March 15, 1971 (in respect of the latter). It was further noticed in the said notice that when the two deposits were (finally) renewed d four post-dated monthly cheques with regard to the interest due on the said deposit at the agreed rate of 12% interest were issued, making a total of Rs. 20,832, but they had all been dishonoured by the company's bankers. The notice, therefore, demanded the total amounts to the petitioning-company by the respondent-company due under the said receipts within 21 days on receipt of the said notice by the company failing which an application for compulsory winding up of the company would be made in this court. To the notice issued by this court to show cause why the petition should not be admitted, the new management of the board of directors of the respondent-company which had been elected, as a result of the order to hold a meeting ordered under section 186 of the Act, replied that with reference to the claim of Rs. 49,600 the petition seemed to be "highly doubtful" and it appeared to be without any consideration. With reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present application for amendment the petitioning-company seeks to explain, by way of clarification, that on June 12, 1967, the petitioning-company had deposited a sum of Rs. 40,000 with the respondent-company with respect to which a fixed deposit receipt bearing No. 214 and dated June 12, 1967, was issued ; the petitioning-company had paid to the respondent-company the said amount by cheque No. 474014 dated June 12, 1967, drawn by the petitioning-company and payable at New Bank of India Ltd., Janpath, New Delhi the bankers of the petitioning-company in favour of the respondent-company, M/s. Ego Metals Works Pvt Ltd.; the said cheque was duly encashed. Since the respondent-company did not pay the agreed interest at 1% per month on August 1, 1969, the respondent-company issued a renewed fixed deposit receipt bearing No. 279 in favour of the respondent-company in the sum of Rs. 49,600 (Rs. 40,000 being principal and Rs. 9,600 as interest for a period of 2 years from June 12, 1967, to June 11, 1969). This fact, it may be recalled, was mentioned on the said fixed deposit receipt itself. Thereafter, the respondent-company issued another renewed FDR No. 305 dated March 15, 1971, for Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 1% per annum together with future interest from May 5, 1972, are due. It is stated that the said amendment setting out these details have been sought only for the purpose of "clarifying" the position and to bring out the real matters in issue between the parties. The amendment is opposed on various grounds, such as the following : there being no power to amend a winding-up petition ; if any amendment was necessary the petitioning-company might withdraw the petition filed already and file a fresh petition containing the necessary particulars. Since a substantial part of the alleged claim made in the winding-up petition is bona fide disputed no amendment shall be allowed especially when the respondent-company could claim immunity from liability on the ground of lapse of time in respect of the transactions alleged. No claim with regard to the sum of Rs. 40,000 or of Rs. 1,00,000 was made in the notice of demand dated January 18, 1972. The contentions in the reply, filed in response to the show-cause notice, are repeated: they bear on the merits of the winding-up petition. The application for winding up itself is said to be mala fide because under a scheme of arrangement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arkar J. referred to the still earlier decision of the Supreme Court in L.J. Leach Co. v. Jardine Skinner Co. [1957] SCR 438 ; AIR 1957 SC 357, as well as some other cases and explained that as a general rule the party would not be allowed to set up a new case or a new cause of action, particularly when a suit on a new cause of action is barred, by way of amendment. But it is also well recognised that where the amendment does not add a new cause of action or set up any new case, but it amounts to no more than presenting a different or additional approach to the facts already on the record, the amendment will be allowed even after the expiry of the statutory period of limitation ( vide observations made by S.K. Das J., speaking for the Supreme Court, in P.H. Patil v. K.S. Patil AIR 1957 SC 363). In a very recent decision of the Supreme Court in Shanti Kumar R. Canji v. Home Insurance Co. of New York AIR 1974 SC 1719, upon which Mr. Mahinder Narain relied, the legal position was reiterated by A.N. Ray C.J. : when the proposed amendment takes away from the defendant the defence of immunity from any liability by reason of limitation it would not be allowed ; but there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the respondent-company had set out in its reply its own version of the monetary transactions between the parties. Hence, I am unable to visualise any possibility of prejudice to the respondent-company by the amendment being allowed the amendment, on the other hand, seems necessary for determining the real question in controversy between the parties. The question whether in the light of the facts pleaded by the respondent-company there is a bona fide dispute or not will have to be gone into later. No new cause of action is thus sought to be introduced ; no new case is being sought to be made out. As pointed out by S.K. Das J. in P.H. Patil's case AIR 1957 SC 363, all amendments ought to be allowed which satisfy the two conditions : ( a ) not working injustice to the other side, and ( b ) necessary for the purpose of determining the real questions in controversy between the parties. Mr. Mahinder Narain relied upon the decisions in In re Cuthbert Cooper Sons Ltd. [1937] 2 All ER 466; [1938] 8 Comp. Cas. 131 (Ch D), In re Lundie Brothers Lid. [1965] 2 All ER 692; 35 Comp. Cas. 827 (Ch D) as well as In re East Kajoria Collieries P. Ltd. [1965] 35 Comp. Cas. 180 (Cal) for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and procedure of the court". These rules came into force with effect from October 1, 1959, and were, as already noticed, framed under section 643 of the Act, which reads as follows: "643. (1) The Supreme Court, after consulting the High Courts, ( a )shall make rules providing for all matters relating to the winding up of companies which, by this Act, are to be prescribed ; and may make rules providing for all such matters as may be prescribed, except those reserved to the Central Government by sub-section (5) of section 503, sub-section (3) of section 550, section 552 and sub-section (3) of section 555 ; and ( b )may make rules consistent with the Code of Civil Procedure, 1908, ( i )as to the mode of proceedings to be had for winding up a company in High Courts and in courts subordinate thereto.......". The above rule 6 is wide enough to enable a court to order amendment even on a winding-up petition if the circumstances of the case warrant the same. After I had dictated this judgment and set it down for being pronounced I noticed from the digest of cases prepared by the High Court that T.P.S. Chawla J. had taken the same view as T have done of amending pleadings ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
