9911796707
TMI Blog1982 (11) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... of a couple of lakhs of rupees a year. The liability of the company was said to be Rs. 25 lakhs as against the small share capital of Rs. 1 lakh and 24 thousand. The plea being that even the substratum of the company was no longer in existence and apart from this ground as the dues of the respondents, after the statutory notice had been given under the Companies Act had not been paid, it deserves to be wound up. The appellant's case before the learned single judge and before us has been that the amount said to be due of Rs. 43 lakhs has been inflated out of proportion. It was their plea that accounts shown by the respondent did not correctly reflect the statement of account between the parties. The matter came up before us a number of times and in order to clarify the situation we directed the parties to file statement of transaction and accounts between them. It is common case that the respondents sell turpentine and rosin. The appellants were the sole selling agents for the Northern and Eastern India. The areas prominent being Delhi, Kanpur and Calcutta. Apart from the other conditions of agency, the appellants were to be paid a commission on the total sales amount, and the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of Rs. 2 lakhs on account to the respondent (which has been paid). We had thought that one way of clarifying the position was that both the parties may be asked to file further statement of transactions on the basis of which the total of the sales had been worked out. It is apparent that the appellants and the respondents have arrived at their respective figure, i.e. , Rs. 5,55,01,354 79 and Rs. 5,31,38,676 on the basis of certain transactions. Without examining this matter in detail it is hazardous to come to the conclusion that the appellants are unable to pay its debts because unless the amount of debt is undoubted or admitted, remedy by way of winding up is seldom favoured. It is true as yet only a citation has been directed to be issued, and not winding up. But it must never be overlooked that order of citation is a very serious matter and even a good company, if a citation is wrongly published may be put to the risk of running into financial difficulty and actually expedite winding up. The requirement of law is not to rush into liquidation of the companies. Efforts, no doubt based on sound data must always be made to keep a company growing, because liquidation must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor, as we are entitled to under section 45 of the Companies Act. Though we, therefore, upheld the order and continue the appointment of the provisional liquidator we would limit it as hereinafter indicated. We direct that it is not necessary that the premises should remain sealed any longer. But the premises will, of course, remain in the custody of the court through the provisional liquidator. He is, however, directed to give the premises for use only to the appellant company. But this will be done only after the appellants have filed an affidavit from all the present directors before the learned single judge giving an undertaking to the court that as and when the court directs immediate and peaceful possession will be given back to the provisional liquidator, without any objection and only after such an undertaking has been accepted by the learned single judge. The provisional liquidator is also directed to make an inventory of the assets in Bombay Calcutta offices which he will file in the court. The same will be done so far as Delhi office is concerned. This he will do before handing over the premises to the appellant. The appellants are restrained from transferring, suble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o them and we specifically permit them to move the learned single judge for obtaining any appropriate order. In order that there may not be any dispute between the parties as to whether any tampering of the books of account or other books of the company is done, we feel that the proper order would be that all these books which are in the premises may be collected by the provisional liquidator who may seal them in boxes and deposit in the court. This is done so that if either of the parties wish to examine any of the books for the purpose of any information, it could do so without difficulty. The provisional liquidator of course will have full access to the books, at any time. Mr. Shah also mentioned that the premises which according to him is the only main income-earning asset of the appellant company has further been sub-let to a large number of persons from whom rents are being realised and he says that there should be some restraint on the appellant not to take away or utilise the whole of the rental because these are the only assets from which the respondents hope to realise their funds. Mr. Kumar, the learned counsel for the appellant, says that no rental has been realised f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
