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TMI Blog1979 (11) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... davit in reply. Thereafter, the matter was mentioned several times before me for the court order but ultimately nothing happened and the matter was heard. The winding-up petition is presented by the heirs and legal representatives of a deceased creditor of the company. After serving a statutory notice of demand under section 434 of the Companies Act, 1956, dated the 28th of August, 1978, the creditor, Shri Aruendra Kishore Roy Chowdhury, died intestate on the 29th November, 1978, leaving behind the petitioners, Mrs. Sukriti Devi Chowdhurani, the widow, petitioner No. 2, Shri Arup Roy Chowdhury, the son, and the petitioner No. 3, Miss Ajapa Roy Chowdhury, and petitioner No. 4, Miss Ajoya Roy Chowdhury, two daughters. The claim arises out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n has been effected after the death of the said Aruendra Kishore Roy Chowdhury, the sole defendant in the suit, whereas the respondent company alleged that they were taking steps for substitution in the said City Civil Court suit. Mr. Nirmalendu Roy who appeared for the petitioning creditors submitted, drawing my attention to the promissory notes and also the statutory notice and replies thereto, that there is no bona fide dispute whatsoever raised by the company to the claim of the petitioning creditors. He submitted that the company's contention sought to be raised in reply to the said statutory notice, and also the said false, frivolous and vexatious suit filed before the City Civil Court, are not bona fide , but have been raised fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint was in substance for obtaining injunction restraining the said deceased creditor, Shri Aruendra Kishore Roy Chowdhury, the only defendant in the said City Civil Court suit, for obtaining an injunction restraining him from giving effect to the notice under section 434 of the Companies Act, 1956, and, therefore, the said suit and order made therein are without jurisdiction and are nullities. Therefore, I am of the view that there is no substance or merit in the defence sought to be raised by the company and there is no bona fide dispute raised to the claim of the petitioning creditors. A question has also been raised as to whether the petitioners can maintain a winding-up petition without obtaining a succession certificate against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lm, "Job Charnaker Bibi", but on the other hand the company has admitted the loan and execution of the promissory notes and, therefore, there is no defence to the liability to pay the said amount to the heirs of Aruendra Kishore Roy Chowdhury, who are now the petitioning creditors in this application. Presentation of a winding-up petition is a statutory right for preventing an insolvent company from carrying on business as that would really amount to a public danger; therefore, the company having no defence whatsoever against the claim of the petitioning creditor, it cannot be said to be an abuse of the process of the court and in my view there is no question of any succession certificate for presenting the winding-up petition at this stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for which the statutory notice was served on behalf of the deceased creditor, Aruendra Kishore Roy Chowdhury, and the company failed to pay the said amount and anticipating the winding-up proceedings, instituted a suit in the City Civil Court which, I have held, is not maintainable, as the City Civil Court has no jurisdiction to stay winding-up proceedings or issue injunction for presenting a winding-up petition, as the same arises out of the Indian Companies Act, or relating thereto and it is clearly excluded from the jurisdiction of the City Civil Court. Further, it is not clear whether the company has taken any step for the substitution of the petitioning creditors in the said suit and whether the alleged injunction is still continuing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Companies Act, by the deceased petitioning creditor. It can now be said to be well settled that the right of a petitioning creditor to present a winding-up petition or of a creditor presenting an insolvency petition is a statutory right and not arising out of any particular contract or of a loan transaction between the petitioning creditor and the debtor. See Sreemannarayanamurthy v. C. Arjanadu, AIR 1939 Mad. 145. The said decision has been approved in the Supreme Court decision in Jagdish Chandra Gupta v. Kajaria Traders ( India ) Ltd., AIR 1964 SC 1882, at p. 1886, para. 8. Therefore, the present petitioning creditor's right to present a winding-up petition against the company cannot be said to be affected by any question of g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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