9911796707
TMI Blog1989 (4) TMI 267X X X X Extracts X X X X X X X X Extracts X X X X ..... on to fish. Both the companies have one chairman. For the purpose of carrying on the business, both the companies entered into agreements with the opposite party-company in order to facilitate the business and advanced huge amounts. After some time, opposite party issued notices to the petitioners to terminate the agreements. While assailing the power of termination of agreements, in reply, petitioners requested the opposite party to repay the advances taken unless processing commenced from December 31, 1986. After some correspondence, the opposite party stopped accepting the stock of petitioner No. 1 and processing the same from May 10, 1987. Petitioner No. 1 tried for an amicable settlement. However, there was no settlement. Thereupon, pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aging director of both the petitioner-companies. He has proved the documents from the stage of agreement till the stage of refusal as well as the notice demanding refund of money taken in advance by the opposite party. Opposite party who had not filed any written statement or objection to the petition did not appear to contest the petition or to cross-examine PW-1. Thus, the statement of PW-1 remains unchallenged. Question (a) : PW-1, in his deposition, proved the agreements and the receipts granted by opposite party as evidence of receiving advances. There is no reason to disbelieve the statement of PW-1 and the receipts. They clearly proved that amounts as indicated in the receipts have been advanced by the two petitioner-companies. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 to the opposite party and amounts were received as per exhibits 8, 9, 10 and 11. Despite the same, the opposite party refused to process the goods. Thus it was liable to repay the amount. If the opposite party had appeared in this court to explain its stand, I would have been in a position to consider whether the amount claimed by the petitioners were to be refunded. The opposite party, however, after appearance, did not feel advised to contest the claim. In such circumstances, there is no material before me to hold that the petitioners have initiated this proceeding just for realisation of the amount. The petitioners have stated in the petition that opposite party company is insolvent. In deposition, PW-1 has also stated the same. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld earlier, there is no material to come to the conclusion that the claim of the petitioners is disputed. If such a conclusion could have been possible, I would have applied the decision in Bengal Builders and Traders P. Ltd. v. Orissa Textile Mills Ltd., ILR 1977 2 Cuttack 703 ; [1978] Tax LR 1862, and would have rejected the petition. In this case, there is no dispute by the opposite party to the claims of the petitioners in court. The amount due is huge and the claim is continuing since 1987. The opposite party company is not able to pay the amount. It is not just and proper to allow such a company to be in existence in the broader interests of commercial morality. There are no extraordinary circumstances why I should not exercise m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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