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TMI Blog1978 (12) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company, except petitioners Nos. 9, 14 and 21. The total share of the petitioners is Rs. 2,17,200. The petitioners are also creditors of the company for a sum of rupees 4,98,758.25. The petitioners sent a notice on the 2nd and 3rd of August, 1977 (copy annex. "D" to the petition), demanding their amount from the company, to which a reply was sent through a counsel by the company saying that the amount of the petitioners was being used as a working capital and that the interest had been reduced by the company, vide resolution of the board of directors, dated 29th of September, 1972, from 18 percent to 15 per cent. Again, a notice was sent on 7th of September, 1977, requiring the respondent-company to pay the amount of Rs. 5,54,225.25. In reply dated 30th of September, 1977, 23 cheques of the value of Rs. 34,897.50 calculated at the rate of 8.33 per cent, of the total deposits, were sent. The total liability had been calculated by the company by reducing the rate of interest from 18 percent, to 15 per cent, on the basis of the directors' resolution dated 29th of September, 1972, which was a unilateral resolution and the petitioner-creditors were not bound by the same. The pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ttle background of this case may be noticed as the same would be relevant while dealing with the contentions of the learned counsel for the respondents. Prem Singh and others have filed against the company, its managing director and the directors, a petition (C.P. No. 188/1974) under sections 397 and 398 of the Act. In that petition, petitioners Nos. 1 to 5, 7, 8, 11 and 12 of the present petition were also petitioners. They, along with a few other persons, made a request on August 1, 1975, that they be permitted to withdraw as petitioners. The prayer of these petitioners was allowed on August 22, 1975, and they were permitted to withdraw from that petition. Later on, these petitioners, along with some other persons, filed an application, C.A. No. 113 of 1977, under O. 1, rule 10, read with section 151 of the CPC, praying that they may be made petitioners again in C.P. No. 188 of 1974 and be allowed to lead evidence. That application came up for hearing before B.S. Dhillon J., who, vide a detailed order dated August 26, 1977, declined the prayer of the petitioners and dismissed C.A. No. 113 of 1977. It is thereafter that the present petition was filed on October 17, 1977, for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated December 1, 1977, as the petitioners on the basis of an arrangement arrived at in the court and noticed in the said order, had accepted payment of the sum due to them; that the company had paid the entire amount in accordance with the order dated December 1, 1977, and that the petitioners could not claim any relief on the ground that the company was unable to pay its debts. After giving my thoughtful consideration to the entire matter, I am of the view that there is considerable force in the contention of the learned counsel for the respondent-company. At the outset, it may be observed, as has been noticed earlier, that at present the only short question that has to be decided is whether circumstances exist which may warrant the advertisement of the petition ? In my view the answer to the aforesaid question has to be in the negative. The petitioners had addressed a notice dated September 7, 1977, requiring the company to make payment of the amount within three weeks of the receipt of the notice, to which a reply was sent on behalf of the company dated September 30, 1977 (copy annex. "G" to the petition). In the reply, the allegations made in the notice (copy an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties, I direct that the amount may be paid as agreed to by the learned counsel for the parties. It may, however, be observed that this would not prejudice the claim of the petitioners on the difference in respect of interest which they are claiming in this petition. However, the question whether still grounds exist for issuing publication for the winding up of the company would now be argued on January 20, 1978." As earlier observed, this order of mine has been fully complied with and all payments up to date have been made to the petitioners. I agree with Mr. Majithia, learned counsel for the company, that having arrived at an arrangement in the court, the petitioners are not justified in pleading that the company is unable to pay its debts. I also agree that having conceded to receive payments, ground ( e ) for the purpose of advertisement is not available to the petitioners. The respondent-company has been able to show its bona fides by making the payment of the entire amount to the petitioners and it would be unjust to hold that the company is unable to pay its debts and for that reason to order the advertisement of the petition. In this view of the matter, the contenti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 petitioners along with some other persons under sections 397 and 398 of the Act. Those petitioners on their own were allowed to withdraw from the petition and, subsequently, their prayer for being impleaded as a party was declined on August 26, 1977. Having failed to get any relief in the application under sections 397 and 398 of the Act, the petitioners chose to serve a notice, copy annex. "F" to the petition, on September 7, 1977, and, thereafter, filed the present petition on October 17, 1977. The sequence of events in the present case certainly supports the contention of Mr. Majithia that the petitioners are only out to harass the respondent-company. Moreover, on the basis of the allegations made in the petition, I am not inclined to agree with Mr. Seth, learned counsel, that the petitioners have succeeded in proving that it is just and equitable to order winding up of the company and that on that ground advertisement of the petition should be ordered. Further, it may be highlighted that in the petition the prayer for winding up is based mainly on the ground that the company is unable to pay its debts, as is evident from the averments made in para. 28 of the petition, which r ..... 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