9911796707
TMI Blog1976 (1) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... at the alleged claim of the bank appears to be due from the company. The bank gave statutory notice dated 28th December, 1970, under section 434(1)( a ) of the Companies Act, and demanded the payment of Rs. 2,59,13836 with interest thereon at the rate of 12 per cent. per annum. It appears that the said notice was not complied with and hence the petition for winding up. The petition was accepted on 16th April, 1971, and was made returnable on 18th June, 1971. It appears that on the application of the petitioners, it was adjourned for two weeks by an order dated 16th July, 1971. Thereafter, the matter did not appear on board until today. Thus, between 16th July, 1971, and 13th January, 1976, a petition for winding up was not prosecuted after its presentation on 16th April, 1971. The intervening period of several years is explained by the large number of precipes filed by the company and consented to by the bank, whereby both the bank and the company by consent have obtained adjournments from time to time ranging for a period of two weeks to eight weeks mainly on two grounds referred to hereafter. At today's hearing, an application is made on behalf of the company for adjournmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttorneys wrote to the learned prothonotary and senior master of this court "to adjourn the hearing of the petition dated 6th April, 1971, from 30th July, 1971, to 13th August, 1971, as the respondents (company) want time to put in their affidavit in reply". This request was granted. A second consent precipe was filed on or about 19th August, 1971, for adjournment till 3rd September, 1971, on the earlier ground, namely, "to put in their affidavit-in-reply". This too was granted. Thereafter, on the same ground of putting in the company's affidavit-in-reply, the company's attorneys with the consent of the bank's attorneys obtained adjournments from the learned prothonotary and senior master from 10th September, 1971, to 18th September, 1971, from 24th September, 1971, to 8th October, 1971, from 8th October, 1971, to 12th November, 1971, from 12th November, 1971, to 26th November, 1971, from 26th November, 1971, to 10th December, 1971, from 10th December, 1971, to 14th January, 1972, from 14th January, 1972, to 28th January, 1972, from 28th January, 1972, to 11th February, 1972, and, lastly, from 11th February, 1972, to 25th February, 1972. The other stage of adjournments is from 25t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsent precipe is merely copied from the model consent precipe reproduced above. However, to show that the 1976 consent precipe is on the lines of 1972 model relevant contents are reproduced at the cost of repetition : "Upon consent of the a attorneys for the petitioners hereunder written be pleased to adjourn the hearing of the petition from 13th January, 1976, to 23rd February, 1976, as the parties require time to finalise the 'without prejudice' consent terms arrived at herein between them". Mr. Thakkar, the learned counsel for the company, was unable to show any document or any draft of the "consent terms" which are supposed to have been "arrived at" between the parties or their attorneys which "require time to finalise". Apart from the bold statement contained in the precipe, there is nothing to show that between the bank and the company, anything has been worked out which can truly and sincerely be described as "consent terms" for which an adjournment was sought in order to enable the parties to "finalise" the same. When one looks back at these consent precipes filed from 15th June, 1972, to 9th January, 1976, the same phraseology has come into existence on the identica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said that the company addressed a letter dated 7th February, 1972, to the bank (which is not produced by either side) and thereafter, after the lapse of over 18 months, a draft was prepared and sent to the company. The fate of this draft is not known. The surrounding circumstances show that both the parties did not choose to do anything and allowed time to pass and on the basis of the statements and representations contained in the consent precipes they were able to keep a winding-up petition for admission in abeyance from June, 1972, till date. There is another aspect of the consent precipes which cannot be overlooked. That is the use of the expression "without prejudice". The words "without prejudice" mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted : See Walker v. Wilsher [1889] 23 QBD 335 (CA). A letter written "without prejudice" is inadmissible so long as it relates to a negotiation ; when the negotiation is closed by an agreement, the privilege ceases. Halsbury's Laws of England, volume 15, 3rd edition, page 407, contains the following statement: "Letters written and oral communications made during a dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... put in their affidavit-in-reply. Thus, for nearly eight months, time was obtained to file an affidavit opposing the admission of the winding-up petition. In order to satisfy myself of the bona fides of these adjournments, I called upon the company's counsel to show the affidavit or draft of the affidavit or any other paper showing that such an affidavit was undertaken or any instructions were given by the company in this connection. The learned counsel, after taking instructions from the attorney instructing him in court, stated that no such affidavit or paper was in their file. This was in the forenoon. Even at the resumed hearing at 2-45 p.m., nothing was shown to prove the truth of the statements made in the precipes for adjournments for the purpose of filing the affidavit-in-reply. Again, from 25th February, 1972, to 19th June, 1972, adjournments were obtained on the ground that the company had not filed the affidavit-in-reply as the negotiation for settlement was pending. This suggests that as if the affidavit was ready but it was not being filed, lest it might mar the negotiations. As noticed above, this statement was also with the rider "without prejudice". In these circu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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