9911796707
TMI Blog1994 (10) TMI 234X X X X Extracts X X X X X X X X Extracts X X X X ..... anufactured by the respondent-company and subsequently on September 1, 1982, it had advanced a loan of Rs. 2,00,000 to the respondent. The petitioner ceased to be a dealer in 1984. After giving credit to a sum of Rs. 7521.25 which amount, according to the petitioner had become due by it to the respondent on the trading account, and after adjusting the amounts paid by the company, towards interest claimed at 18 per cent., the petitioner has claimed that a sum of Rs. 2,79,911.63 was due to the petitioner as on October 31, 1990. This petition was filed on November 14, 1990. The respondent-company has disputed the claims made by the petitioner and has contended that the respondent is not liable to pay any sum to the petitioner. It is the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he original registers and ledgers in support of his claims in this petition and that there is no written agreement between the parties to pay interest either on the deposit amount or on the loan amount. According to the witness PW-1, the agreement to pay interest was oral and no further details are given about it. The evidence of PW-1 itself would go to show that there is no written agreement between the parties to pay interest either on the deposit of Rs. 20,000 or on the loan amount of Rs. 2,00,000. What is relied on by the petitioner is the debit notes sent by it in the year 1984. The fact that the respondent did not protest against it or send any reply thereto cannot by itself be taken as sufficient to infer a contract between them to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that loan account was separate account and had been treated as such by the petitioner though later unilaterally clubbed with other accounts would go to show that the balance amount due under the loan account was fully paid by October, 1986. The petitioner's claim that it was entitled to interest on that account is prima facie not tenable in the absence of any written agreement or any letter from the respondent confirming any agreement to pay interest, The oral agreement is not pleaded in the petition and the witness has given to detail as to where when and who had orally agreed to pay Interest. There is no presumption that every loan or advance is made on condition of interest being paid thereon. The claim made on this account is also p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o make a winding up order. The petitioner in such a situation is not left without a remedy. It is open to the petitioner to establish its claim in the civil court and if the decree that may be obtained by it remains unsatisfied in whole or in part, the petitioner can seek the winding up of the company., Section 434(1)(b) of the Act expressly provides that : "434. (1) A company shall be deemed to be unable to pay its debts- . . . (b) if execution or other process issued on a decree or order of any court in favour of a creditor of the company is returned unsatisfied in whole or in part." It is not the legislative intent that the company court should convert itself into an ordinary civil court and proceed to hold a trial at the instance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s.435, wherein the court, while dismissing the creditor's winding up petition, held that in a winding up petition, the creditor has to establish that the debt owed by the company is clear, valid in law, unimpeachable and cannot be disputed. These decisions are not of any assistance to the petitioner. Mr. M. A. Sadanand, learned counsel for the respondent-company, relying on the decisions in the case of Bukhtiarpur Bihar Light Railway Co. Ltd. v. UOI [1954] 24 Comp. Cas.507; AIR 1954 Cal. 499; Agrob Anlagewbau GmbH v. Orient Ceramics and Industries Limited [1986] 60 Comp. Cas.691 (Delhi) ; Kudremukh Iron Ore Co. Ltd. v. Kooky Road ways (P.) Ltd. [1986] 60 Comp. Cas.1069 (Kar.) and T. Srinivasa v. Flemming (India) Apotheke Private Limited [1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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