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TMI Blog1984 (8) TMI 240X X X X Extracts X X X X X X X X Extracts X X X X ..... nting Contracts P. Ltd. (hereinafter called "the company"). The preliminary issue raised was : "Whether the debt or claim of the petitioner on the basis of which a winding-up order is sought, should be a subsisting debt at the date of the hearing of the petition or is it enough that it subsisted at the date of presentation of the petition." The learned judge answered the issue as under : "In the opinion of the court, the debt or claim of the petitioners on the basis of which a petition for winding up is presented and winding-up order is sought, should not necessarily be a subsisting debt at the date of the hearing of the petition and it is enough that it subsisted at the date of the presentation of the petition." It was this finding of the learned judge that was being challenged in this appeal. Basic facts relevant for the determination of the issue are not in dispute. The petitioner company filed a petition for winding up of the company on the ground under section 433( e ) of the Companies Act, 1956, viz ., that it was unable to pay its debts because of non-compliance with the statutory notice dated September 9, 1976, as provided under section 434( a ) of the Companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indebted in a sum exceeding five hundred rupees then due has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, a demand under his hand requiring the company to pay the sum so due and the company has for three weeks thereafter, neglected to pay the sum, or to secure or compound for it to the reasonable satisfaction of the creditor;" Section 439(1) provides: "An application to the court for the winding up of a company shall be by petition presented, subject to the provisions of this section, ... ( b )by any creditor or creditors, including any contingent or prospective creditor or creditors; or ( c )by any contributory or contributories; or" . Section 441(2) provides that: "In any other case, the winding-up of a company by the court shall be deemed to commence at the time of the presentation of the petition for the winding-up." Lastly, section 447 provides: "An order for winding up a company shall operate in favour of all the creditors and of all the contributories of the company as if it had been made on the joint petition of a creditor and of a contributory." The whole argument of the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustries Development Corporation v. Trawlers Pvt. Ltd. [1979] Tax LR 2116; [1980] 50 Comp. Cas. 674 , where the court, while dealing with the expression "then due", as appearing in section 434(1), held that in cases where the company is unable to pay its debts, the question whether the debt is due at the time of filing of winding-up petition was relevant. Similarly, under section 441, the effect of the winding-up order was to relate it back to the date of the petition and the winding-up was deemed to commence from the date of the presentation of the petition. If that were so, then the question whether the debt was barred by limitation or not would be of relevance only at the date of the petition and not thereafter. Under section 447, the winding-up petition was to operate in favour of all the creditors and contributories of the company as if it had been made on the joint petition. The said provision particularly showed that once the petition was properly maintainable at the date of the petition, it was as if it was a joint petition by all the creditors and the same cannot cease to be maintainable thereafter, on the ground that the debt of the creditor filing the petition has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly point out, the said decision which was under the provisions of the Presidency Towns Insolvency Act, instead of supporting the contention of the learned counsel for the company, would lend support to the view that we are taking, by bringing in contrast the specific provisions of the Presidency Towns Insolvency Act on the question, as against the provisions of the Companies Act with which we are concerned. In that case, arising under the Presidency Towns Insolvency Act, the question for determination before the court was in the same form as before us, viz : "Whether the debt, on the basis of which the petition for adjudication was presented and the adjudication order was sought, should be a subsisting debt at the date of the hearing of the petition or is it enough that it subsisted at the date of the presentation of the petition ?" The decision of the court turned on the interpretation of the specific provisions of section 13(2) of the Presidency Towns Insolvency Act, which provided, inter alia , that: " At the hearing the court shall require proof of ( a ) the debt of the petitioning creditor" It was clear from the judgment that only because of the said specific provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petition with a view to keep alive the debt becoming barred by limitation. In fact, if the winding-up petition were to be a legitimate mode of recovery of the just debt due and payable by the company at the date of the petition, then no question of the debt on which the petition was based becoming barred by limitation at the date of the order would ever arise. A short reference may be now made to two decisions considered by the learned judge in his judgment. They were: (1) of the Punjab High Court in the case of Ramchand Puri v. Lahore Enamelling and Stamping Co. Ltd. [1960] 30 Comp. Cas. 514, and (2) of the Allahabad High Court in the case of J.A.Dixit v. Official Liquidator, AIR 1963 All. 284. In both the said decisions, the question before the courts was as to the material date for determining limitation in respect of the debt claimed before the liquidator by a creditor of the company ordered to be wound up, at the time of settling the list of creditors which was quite different from the question before us. The Punjab High Court relying on the provisions of the Companies Act referred to above and of the corresponding provisions of the Provincial Insolvency Act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not entitled in making an order under that clause to take into consideration as one of the circumstances the fact that the debt was barred by limitation at the date of order, or that the creditor had not preserved his claim against the bar of limitation by filing a suit, if in law, the petitioner was not required to do so. In the view that we are taking, therefore, the appeal would stand dismissed with no order as to costs. Appeal No. 135 of 1983 : This appeal is against the court's order rejecting the petitioner company's application for amendment of the petition by averring certain facts and based thereon alleging a new ground of winding up under section 433( f ) of the Companies Act, viz ., the court is of the opinion that it was just and equitable to wind up the company. Initially, in the petition, the only ground for winding up the company that was pleaded was under section 433( e ), viz. , "the company was unable to pay its debts" as the company had failed to comply with the statutory notice of demand under section 431(1). The application for amendment filed at the hearing of the petition averred that on certain facts stated therein, the substratum of the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an winding-up order, if in its opinion it was just and equitable to do so, without even the said ground being expressly pleaded, by taking into consideration all the circumstances not only those existing at the date of the petition but also even those subsequent thereto as shown to be existing at the hearing. It that case, if the petitioner by amendment was to plead such facts giving rise to a plea under section 433( f ), it could not be said that he was introducing anew cause of action. And even if that were so, the petitioners could not be prevented from pleading facts which had come to his knowledge after the petition was admitted and then raise a new ground for winding up under section 433( f ) based on those facts. In the case before the court in the afore cited decision, the facts were somewhat different. In that case, although at the hearing of the appeal against the order of the lower court granting amendment, the court held that the petition was to be taken as admitted, rejecting the petitioners' contention to the contrary, the court appeared to take the view that the petition which was only on the ground of inability to pay the debt, as it stood when filed, ought no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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