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TMI Blog2002 (10) TMI 683X X X X Extracts X X X X X X X X Extracts X X X X ..... the balance amount of Rs. 3 crores for a further period of one year. The said relationship between the two began in February 1993 and the refund of Rs. 2 crores was made in April 1994. On 19-5-1994, the respondent- company paid to the petitioners a sum of Rs. 22 lakhs towards part payment of the income/returns accrued on the funds deployed. It further appears that the respondent-company had confirmed on 30-6-1994 and 31-8-1994 that there was a balance sum of Rs. 3 crores lying as deposit under the scheme, it further appears that on 3-10-1994, the respondent- company paid to the petitioners a sum of Rs. 51,50,351 towards part payment of the income/returns accrued on the funds deployed, it is the case of the petitioner-company that by a letter dated 8-10-1994, the respondent-company had informed the petitioners that the company had worked out the returns on the sum of Rs. 5 crores accrued in favour of the petitioners for the year 1993-94 being sum of Rs. 88,22,465. On 16-3-1995, the balance sum of Rs. 3 crores was refunded by the respondent-company. It is the case of the petitioner-company that along with the said sum of Rs. 3 crores, the company did not pay to the petitioners, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an ascertained and admitted sum and since the company has failed and neglected to pay its debts, and has lost its substratum it deserves to be wound-up under section 488( e ) and ( f ) read with section 434(1)( a ) of the Companies Act, 1956. He has also submitted that the company has incurred net loss to the tune of Rs. 36.10 crores and that its liabilities have far exceeded its assets. He pointed out that its total loans during the financial year 2001-2002 are Rs. 86 crores as against the total net assets and investments (Rs. 9.5 + Rs. 16 crores) are Rs. 25.5 crores only. He further submitted that its financial position is worsening day-by-day as every year there are net losses in addition to the accumulated losses, he has, therefore, urged that the company has not only failed and neglected to pay the debt of the petitioner but has also lost its substratum and its net worth has eroded to an irretrievable extent and, therefore, according to him it would be just and equitable to order winding-up of the company in the interest of the general public, creditors and investors. He has relied on the following decisions in support of his submissions : ( i ) Indana Spices and Food I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there cannot be a fixed or determined amount of profit or return on the investment as it would depend upon the fluctuations in the share prices. It is totally unreasonable to construe the letters written by the company in the normal course of the business as a statute and to tie down the company on the basis of language loosely written by the writer. It is unthinkable and unreasonable to construe that the company had agreed in its two letters dated 8-10-1994 that it would pay the return on the basis of Rs. 5 crores though it had the balance of deposit of Rs. 3 crores. If in fact there was such an agreement both the parties would have to adduce oral/documentary evidence. The Company Court cannot enter into such a controversy to determine the amount of debt when the petitioner has failed to establish the amount of debt payable by the company. According to the company it has paid the whole amount of the returns accrued on the amount of Rs. 5 crores and thereafter on the balance of Rs. 3 crores proportionately and has nothing to pay. The dispute raised by the company is bona fide and substantial. According to it and admittedly the whole amount of Rs. 5 crores is refunded and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only premature but the debt is also disputed and if at all the debt is refundable, it could only be after a full and complete investigation into the rights and obligations of the parties, as reflected in the chit fund agreement, and, in that view, the company court cannot maintain this petition and adjudicate on that main issue which is the foundational issue for further exercise of the jurisdiction to wind-up a company incorporated under the Act. It is fundamental that in order to sustain a case for winding up of an incorporated company on the ground that it is unable to pay its debts, the debt which is the substratum of the action either under section 433( e ) on its own or under section 433( e ) read with section 434(1)( a ) of the Act is not a disputed debt or a debt which could be found after an investigation and adjudication on the claims made inter se between the so-called creditor and the debtor company. Any such investigation which would involve the determination of the quantum and quality of the liability would certainly raise a reasonable presumption that it is a disputed debt. Once such a lingering doubt arises in the mind of the company court that the debt is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e part of the company to pay its debts as such inability is self-evident on the admitted facts. There are huge debts, secured as well as unsecured, which, as a matters stand, are far beyond the means of the company to meet. Even so, a court will exercise a sound discretion in deciding whether to wind up a company or not and in doing so consider many relevant factors, it may be that despite the inability to pay its debts, a company has still prospects of coming back to life and if the court is told of any specific proposal, which in the opinion of the court is likely to materialise the court will be inclined to give a chance to resurrect the company. It should be the policy of the court to attempt to revive though at the moment the company may not be solvent and may not be able to meet its obligations to is creditors. But this should be only if it is shown that there is reasonable prospect for resurrection and survival. It may be easy for a court when once it is shown that the company is unable to pay its debts to bury it deep, and distribute whatever is available as distributable surplus. But it is the duty of the court to welcome revival rather than affirm the death of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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