9911796707
TMI Blog1992 (9) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... three trustees, being three sons of Mriganka Mohan Sur. On February 25, 1986, these trustees again transferred the interest to one Bajrangbali Market Association and admitted in the registered deed of transfer that the company was not in actual physical possession and as such the three suits for mesne profits were not maintainable, and that the said three decrees were fraudulent decrees obtained by suppression of these facts, and also fraudulent because on the date of decree the hereditament had already stood transferred (see pages 44 and 60 of paper book I). A few days before the second transfer, when the three suits had been decreed, the executors of Mriganka Mohan Sur were the only persons continuing the action. The said decrees were all ex parte decrees. At one stage in one of the three suits the donee trust was substituted as plaintiff. But such substitution was removed and the executors of Mriganka Mohan Sur were substituted in their place, (see page 68 of paper book I). The company has come up and said that the ex pare decrees were passed in favour of utterly wrong persons as Mriganka Mohan Sur had divested himself of his interest during his lifetime. The executor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which might have been collusively suffered by the company for unwarranted gain of the corporate managers. No official liquidator can disallow a debt which has been treated by the company court itself as so indisputable as to cause the admission and advertisement of a winding up petition. Thus, the company court scrutinizes with double caution the debt which is to be the beginning of the end. It has been held in Fraser, In re [1892] 2 QB 633 that even if an application to have a judgment in a civil suit set aside has been refused, and the said refusal has been affirmed in the Court of Appeal, even in that case, the decretal dues can be gone behind by the company court. So also in the case of even a consent judgment in Lennox, In re [1885] 16 QBD 315. It has also been held that even if unconditional leave to defend an action has been granted, the company court might yet admit a winding-up application on the said same debt; Welsh Brick Industries Ltd., In re [1946] 2 All ER 197 (CA). The position at law well settled both in England and in India, therefore, is that a winding-up court on its own goes behind the decree in the aforesaid serious circumstances, and if it is itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial liquidator. But, as soon as the winding up petition is admitted and advertised, the damage to the company's reputation will be done, even if the matter for passing a final winding up order still remains to be decided. The question of the petitioning creditors holding any money in trust for any beneficiary immediately upon the winding up petition being admitted does not arise Under these circumstances the dicta of a Division Bench of this court in the case in Rai Charan Mondal v. Biswanath Mondal, [1914] 20 CLJ 107 ; AIR 1915 Cal 103, would not be wholly to the point. In that case, it was held that a decree passed in favour of a plaintiff, who had partly transferred his interest in the suit, was not an improper decree. It was mentioned by Sir Ashutosh Mukherjee delivering the judgment in the middle of page 109 (of CLJ) that for a part of the decree the transferring plaintiff was still the real plaintiff. Under those circumstances, it was held that the full decree in favour of the plaintiff was not an improper one and it was further held that the plaintiff would hold the benefit of the rest of the decree for the transferee beneficiaries. But here, if the winding up applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same in the facts and circumstances of this case. Mr. S. P. Majumdar, appearing for the petitioning creditors, stated that two of the trustees of the Jana Kalyan Trust were also two of the executors of Mriganka Mohan Sur. We find no substance in the point because the trust itself was the donee and the trustees themselves were not the donees. As such the coincidental identity of two of the persons is not a legally relevant point. Mr. Majumdar also argued that on a construction of the deed, the benefits of these three litigations were not assigned, but only those of the earlier ones. We find no substance in this contention as the words in the deed of gift are sufficiently wide and general for these three suits to be also included therein. Mr. Majumdar also argued that under section 122 of the Transfer of Property Act acceptance of the donees is necessary. Such acceptance is found in the deed itself at page 87 of the first part of the paper book. Apart from relying upon the aforesaid case reported in Rai Charan Mondal v. Biswanath Mondal [1914] 20 CLJ 107 ; AIR 1915 Cal 103, Mr. Majumdar also relied upon the case of a learned single judge in Krishan Sharma v. Shital ..... X X X X Extracts X X X X X X X X Extracts X X X X
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