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TMI Blog1980 (7) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... payment. It is alleged that notwithstanding a demand having been made on the company by the 2nd petitioner by the letter, Ex. P-7, dated June 22, 1977, for payment of the debt the company committed default and thereupon a notice, Ex. P-8, dated 1st July, 1977, under section 434 of the Act was issued to the company by the 2nd petitioner through counsel. Thereafter, both the petitioners jointly issued another letter to the company, Ex. P-10, calling upon the latter to discharge the debt within four weeks of the receipt thereof. Though the said notice was acknowledged by the company on August 19, 1977, the demand was not complied with and hence the petitioners came up to this court and filed the petition for winding-up. C. P. Nos. 16 to 18 of 1977 are similar petitions filed under sections 433, 434 and 439 of the Act for the winding-up of another company by name Trivandrum Spinning Mills Ltd., Balaramapuram. The petitioners therein are three different creditors of the company to whom amounts are said to be due by the company for supplies of cotton made to it by the petitioners. The debts having not been discharged by the company in spite of demands made in the manner prescribed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with effect on and from November 9, 1977, be conducted to serve as a measure of preventing unemployment and of unemployment relief. By another notification of the same date issued under section 4 of the Kerala Act the State Govt. directed, inter alia , that during the period the Trivandrum Spinning Mills Ltd. continued as a relief undertaking any liability or obligation of the said undertaking accrued or incurred before it was declared as a relief undertaking and any remedy for the enforcement thereof shall be suspended and that all proceedings relating thereto pending before any court, Tribunal, officer or authority shall be stayed. In view of the aforesaid notifications declaring the two companies to be relief undertakings and the consequential suspension of the liabilities or obligations incurred by the said undertakings prior to the said declaration and all remedies for enforcement thereof it was contended before the company court by the Additional Advocate-General representing the industrial undertakings concerned that inasmuch as a liability or obligation of the industrial undertakings to discharge towards the petitioning creditors remains suspended by virtue of the aforem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a conflict between the Industries (Development and Regulation) Act, 1951, which by section 18FB has empowered the Central Govt. to order a suspension of operation of any of the enactments specified in the 3rd Schedule therein as also of all obligations and liabilities in respect of any industrial undertaking of which the management is taken over under its provisions and the provision contained in section 4 of the Kerala Act relating to suspension of liabilities, obligations and remedies. Lastly, it is contended that the restrictions imposed by the impugned notifications issued under the Kerala Act on the enforcement by the petitioners of the contractual obligations entered into by them with the two companies constitute unreasonable restrictions on the fundamental rights of the petitioners to carry on their trade or profession under article 19(1)( g ) of the Constitution and that they also violate article 301 of the Constitution. In view of the challenge raised by the petitioners against the constitutionality of the Kerala Act and the impugned notifications issued thereunder, the learned company judge has referred these cases for being heard by a Division Bench and that is how t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt with the provisions of sections 433, 434 and 439 of the Companies Act, 1956. The object and purpose of the two enactments have little in common and they operate in different fields. Even if there is an incidental encroachment by the State enactment on any matter which is dealt with in the Companies Act that would not affect the legislative competence of the State Legislature to pass the impugned legislation which in pith and substance relates to the topic covered by entry No. 23 aforementioned. Apart from the above principle, as a matter of fact, there is no conflict between the provisions of sections 3 and 4 of the Kerala Act and those of sections 433, 434 and 439 of the Companies Act. The aforesaid provisions of the Companies Act only provide that a creditor may move the court for the winding-up of a company on the ground that it is unable to pay its debts. In order to attract the operation of the provisions there must be a subsisting or enforceable debt. The Companies Act does not deal with the topic as to under what circumstance a debt shall be treated as subsisting and enforceable. Hence, section 4 of the State enactment in so far as it provides for the suspension and enfor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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