9911796707
TMI Blog1996 (12) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... ving its head office at A.T. Road, Bokaghat in the district of Jorhat. The company owns and possesses a tea garden, namely, Hautley Tea Estate within the sub-division of Golaghat, in the district of Jorhat, Assam. According to the petitioners, the manager of the said tea garden as well as the company placed orders with the petitioners firm for selling, supplying goods in respect of Company Petitions Nos. 7 of 1987 and 10 of 1987 and for repairing certain machinery of the garden, in respect of Company Petition No. 8 of 1987 from time to time in between 1983 and 1986. The goods were duly received by the authorised agents of the tea garden of the company. Besides the petitioner in Company Petition No. 8 of 1987 made repairs of machinery of the garden. After supplying the goods and making repairs of machinery, the petitioner firms submitted bills. The amount due from the company in Company Petition No. 7 of 1987 is Rs. 1,55,183.67, in Company Petition No. 10 of 1987 is Rs. 56,974.36 for selling the goods and in Company Petition No. 8 of 1987 is Rs. 1,08,760.10 for repairing several machinery of the garden. The company paid to the company petitioner in Company Petition No. 8 of 1987 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had taken all the liabilities to pay the dues to the creditors before execution of the sale deed and the said amounts would be deducted from the purchase money. The agreement was signed on September 26, 1986, and the proposed purchasers had already taken over possession of the garden on the date of agreement. As the proposed purchaser had taken all the liabilities of the garden the respondent-company had nothing to do with the liabilities of the Hautley Tea Estate. However, the proposed purchasers failed to pay the balance purchase price within the stipulated time and as a result the sale deed could not be executed. Though the respondent-company demanded back the possession of the garden from the proposed purchasers, instead of giving back possession of the tea garden they filed a suit in the court of the Assistant District Judge, Golaghat and obtained an injunction restraining the respondent-company from taking back possession of the garden. The proposed purchasers now without paying anything to the respondent-company are enjoying the tea garden and the matter is now pending before this court. Thereafter, the respondent-company filed an application to implead the proposed purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondents Nos. 2 and 3 and the respondent-company has no manner of connection with the said Hautley Tea Estate, except the price agreed to be paid. These respondents have already filed a suit (T.S. No. 41 of 1987) and the trial court passed status quo order. An appeal was preferred before this court (Miscellaneous Appeal (F) No. 41 of 1988), and this court refused to interfere with the said order of status quo granted by the trial court. According to respondents Nos. 2 and 3 the said property of Hautley Tea Estate cannot be the subject-matter of the company petition and the said amount cannot be recovered from the said property and now respondents Nos. 2 and 3 are holding the property by the order of this court. That being the position, that cannot be the subject-matter of the litigation in a company petition. If the amount is due by respondent-company or any creditor that can be recovered from other properties of the respondent-company. As per the agreement entered into by the respondent-company and respondents Nos. 2 and 3, the respondent-company had given full details of the liability of the company to which the property of Hautley Tea Estate was charged, but the present liabi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 500. Where in spite of repeated demands by a creditor the company neglects to pay, it is prima facie evidence of inability to pay. The expression "unable to pay its debts" is to be taken in the commercial sense of being unable to meet current demands though the company may be otherwise solvent. The test is whether the company's existing liabilities are such as to make the court feel satisfied that the existing and probable assets would be insufficient to meet the existing liabilities. In such circumstances the court may be inclined to pass an order of winding up but the mete fact that certain liabilities will accrue due in future which are more than the present assets does not necessarily lead to the conclusion that the company will be unable to meet its liabilities when they accrue due. But in case the debt is disputed then the provisions of winding up is not attracted, therefore, the company court before considering as to whether the company should be wound up or not on the ground of inability to pay its debts, is required to see whether such liability of the company is an admitted fact or a disputed one. If such debt is disputed then in that case the question of winding up by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company at present is not in a position to pay the amount due. Respondent No. 2 entered into an agreement for sale of the garden, and the possession of the tea garden was taken over by respondents Nos. 2 and 3 pursuant to the said agreement. According to these respondents, the respondent-company was in financial crisis. The company was not in a position to run the garden properly for want of finance. The liability of the company became more than rupees one crore. In paragraph 5 of the additional affidavit-in-opposition these respondents have stated as follows : "5 In other words, Hautley Tea Estate is only one of the properties of the said company. Assam Co-operative Apex Bank Ltd., a banking institution, in the co-operative sector used to finance the said tea estate and the present liability of the said company was about Rs. 1,13,32,217.46 as on September 26, 1986. Apart from the aforesaid liability, the tea estate also could not pay the provident fund contribution and ultimately the tea estate also could not pay the wages to its workers. When the industry became sick and the estate was not in a position to pay the wages apart from other legal liabilities, the number of wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t all the creditors should get some money out of it and respondent No. 2 should not take the benefit. Various amounts are due to the petitioner which have not been paid by the company. It is true that no notice was issued under section 434 of the Act. Section 434 envisages that when a notice is served under that section in the manner prescribed and if the payment is not made within a period of three weeks it will be presumed that the company is unable to pay its debts. In my opinion, this only gives a presumption that the company is unable to pay its debts. Even without serving such notice if it can be proved that the company is unable to pay the amount the court cannot ignore the fact that the company was unable to pay the amount. It is the case of the petitioner as well as respondent No. 2 that the company is almost defunct. Therefore, merely because the notice under section 434 was not served it cannot be said that the company is not unable to pay its debts. As there are ample materials before this court that the company is unable to pay its debts of the creditors, therefore, in the interest of all creditors, in my opinion, the company should be wound up. In the result, I orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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