9911796707
TMI Blog1981 (1) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... van Manufacturers and Traders P. Ltd., a registered company having its registered office at Bangalore, The respondent-company has for its main objects the business of manufacture, traders, to act as contractors, representatives, agents, exporters and to act as distributors, sub-agents and to carry on the business as transporters, etc , The facts briefly stated leading to this petition are as follows : The petitioner-firm advanced a sum of Rs. 10,00,000 to one Sheth Balchand Menghraj Pamnani who was the owner (hereinafter referred to as the owner) of a biscuit factory together with the grounds, the machinery and the standing building structures thereon situate at Gwalior City in Madhya Pradesh State on the security of the properties compr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve years with an optional clause to renew it for a further period of five years on the same terms and conditions. On the same latter date in 1976, the owner, the lessee-company, the respondent-company and the petitioner-firm entered into a mutual agreement by which the respondent-company undertook to pay a sum of Rs. 20,000 per mensem to the petitioner-firm till the mortgage debt (per annex. B, the deed of 13th September, 1972) was fully discharged out of the amounts payable by the respondent-company under the agreement with the owner and the lessee-company to which reference has already been made. Pursuant to this agreement, up to July 31, 1979, certain sums at the rate of Rs. 20,000 per mensem have been paid. Thereafter, the payments ceas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tance the payment to the petitioner-firm pursuant to the agreement of 18th October, 1976, was discontinued. In fact, the petitioner had to suffer the order of the appointment of a receiver in that case and in that connection the respondent obtained the relief from the Supreme Court which set aside the order appointing a receiver to take possession of the factory with all its buildings, machinery, plant and staff, etc . This relief was given as an interim measure in the proceedings pending before the Supreme Court. Under the directions of the Supreme Court, the respondent-company has deposited Rs. 6,60,000. It is, therefore, the case of the respondent that in the absence of any fiduciary relationship amounting to a valid money contract, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration- in so far as the respondent-company was concerned, such an arrangement not being: enforceable in a court of law. It has been contended that it cannot be the basis for these, proceedings to foist a debt which does not exist in law with reference to the respondent-company. Two things must be proved by the petitioner for moving this court under section 433 of the Act. The first requirement is that a debt exists. The second requirement is that the company is unable to pay its debts. In the present case, the first requirement itself is not proved. The test for determining whether the agreement at annex. F can form the basis for presenting this petition, one must ask the question whether a court of competent jurisdiction would grant a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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