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TMI Blog1994 (9) TMI 272X X X X Extracts X X X X X X X X Extracts X X X X ..... creditors over and above the amount credited as goodwill. The amount owed to minors itself was well over Rs. 40,000 plus interest at the rate of 18 per cent, per annum. Respondent No. 1 had undertaken to pay the amount standing credited to the accounts of the appellants as shown in the balance-sheet, annexure P-4, but the learned single judge did not take note of this important fact. The resistance to the winding up is based on a legally tenable defence and bona fide grounds. In fact, the company is alleged to be totally insolvent and was selling the bricks which made up the buildings in order to pay its dues to the Syndicate Bank. It is submitted that the respondents were hand in glove with each other in disposing of the property and pocketing the proceeds to the detriment of the appellants. The finding of the learned single judge that respondent-company was a running concern is stated to be contrary to the pleadings. It is stated that the learned single judge was not justified in commenting upon the conduct of the appellants during the interim period from the date of the filing of the company petition till the passing of the final order and did not take note of the fact that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... balance-sheet shares were alloted to the partners of the firm at the time of its dissolution but no share was allotted the partners, namely, Trilok Chand Jain and Dinesh Kumar Jain. At the time of dissolution of the firm the value of the goodwill was assessed at Rs. 1 crore. It was contended that a total sum of Rs. 10,24,500.27 was payable by the company to the appellants as principal amount on March 31, 1989 along with interest at the rate of 18 per cent. annum Notice of demand under section 434 of the Act was served on September 5, 1989, calling upon the company to make the payment within three weeks from the date of service. After the receipt of the notice by the company, the respondents are alleged to have got a suit filed by one Shri Neeraj Jain in the court of the Additional Senior Subordinate Judge, Jagadhri, for a declaration to the effect that the dissolution deed dated March 31, 1989, dissolving the firm was ineffective, non-existent, non est , inoperative, void, illegal, a nullity and not binding on the plaintiff as the same was against his interest. A further prayer for rendition of the accounts of the firm was made with a prayer for grant of permanent injunction restr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, a firm is not a 'person' and as such is not entitled to enter into a partnership with another firm or Hindu undivided family or individual. In this view of the matter, there can arise no question of registration of a partnership purporting to be one between three firms, a Hindu undivided family business and an individual as a firm under section 26A of the Act." As the claim has been preferred on the basis of a firm which in law did not exist, the claim of the appellants was liable to be rejected on this ground alone. However, as this point has not been raised by the respondents either in the pleadings or during the arguments, we have opted to decide this appeal even on merits. A company can be dissolved under the circumstances enumerated in section 433 of the Companies Act. One of such circumstances is that if the company is unable to pay its debts it may be dissolved by the court. The debt within the meaning of clause ( e ) of section 433 of the Companies Act must be determined or a definite sum of money payable immediately or on a future date. A conditional liability cannot be termed to be a debt unless the condition has already happened. Wilful avoidance or neglect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f his client was undisputed and the resistance put up by the respondents was without any basis. He has submitted and argued at length that the goodwill of the partnership was a valuable asset which after the dissolution of the firm had become the liability of the respondent-company and was undisputably payable to the appellants. Whereas the claim of the appellant was bona fide reasonable and undisputed, the resistance put up by the company was hypothecated, fabricated and concocted, to resist the claim of the appellants. He has further argued that had the learned single judge taken note of all the circumstances in the pleadings the petition should have been allowed and the company directed to be wound up. The deed of dissolution of the partnership consisting of the members of the family provided that after the dissolution of the firm the business shall be carried on by the respondent-company and in consideration of the assets available, the continuing partners agreed to pay to the outgoing partners the amount standing credited to their respective accounts in the balance-sheet as drawn on March 31, 1989, as per mutual agreement. The balance-sheet attached with the deed of dissol ..... X X X X Extracts X X X X X X X X Extracts X X X X
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