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TMI Blog2008 (5) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioning creditor. The company has an arguable case. The Company Court is not a debt collecting court. In view of the defence raised by the company, the claim of the petitioning creditor is relegated to a suit. The winding up application is dismissed. - C.P. NO. 423 OF 2006 - - - Dated:- 2-5-2008 - MS. INDIRA BANERJEE, J. JUDGMENT 1. This application under sections 433, 434 and 439 of the Companies Act, 1956, has been filed for winding up of Shuvam Watch Straps (P.) Ltd., hereinafter referred to as the company. 2. The petitioning creditor claims to carry on business relating to inter alia advertising and publicity under the name and style of M/s. T. Sarkar. According to the petitioning creditor, the business was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany duly accepted the bills raised by the firm on the company without objection. According to the petitioning creditor, the company acknowledged its liabilities at a meeting with the firm held on 26-3-2004, and assured the firm of payment in a short time. 9. According to the petitioning creditor, after giving credit for all the payments made by the company to the firm, there remained outstanding from the company to the firm, an aggregate amount of Rs. 65,21,836 for the period from April, 2003 to March, 2004. The company has, allegedly acknowledged liability of Rs. 62,37,312.73 to the firm as on 31-3-2003, in its income-tax return. 10. According to the petitioning creditor, the transactions between the parties were running and con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... agreement where-under the surviving partner could continue business as sole proprietor on the death of the other partner, claim for compensation by a proprietorship concern for loss of business of a partnership firm was not maintainable. 16. That the judgment in the case of Afsaar Hussain v. Trilokchand Premchand AIR 1975 Orissa 84, was rendered in the special facts and circumstances of the case where all the partners had not joined in the suit. 17. In Chhotelal Ratanlal v. Rajmal Milapchand AIR 1951 Nagpur 448, the court held that in actions on contract, it is the right of the defendant, if he takes the objection in proper time, to insist upon all persons with whom he contracted, being joined as plaintiffs. 18. In the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arguable defence to the claim of the petitioning creditor. 22. In other words, this Court might admit a winding up application, only if the claim is admitted, or the company has no defence to the claim of the petitioning creditor. Of course, a sum defence is no defence. 23. The adjudication of the claim of the petitioning creditor against the company involves scrutiny of accounts. There is no clear and unambiguous acknowledgement of debt. The veracity of the documents alleged to have been submitted to the income-tax authorities has been disputed as also the authority of the person under whose signature the documents had been submitted. There is a categorical statement that Mr. Kumar, who signed the documents was not even in the pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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