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TMI Blog2009 (5) TMI 552X X X X Extracts X X X X X X X X Extracts X X X X ..... anies Act, 1956, for winding up of the respondent-company on the ground that the company has been unable to pay the admitted debt due to the petitioner and even otherwise it shall only be just and equitable to wind up the company for having suspended its work for more than one year. The claim is made on the basis that the respondent-company had appointed the petitioner as a dealer for the distribution of liquified petroleum gas (LPG) to customers who had been given connections for domestic use, produced by the respondent-company. 2. The terms of appointment of the dealership included, inter alia , the job of canvassing for connections with customers and the delivery of equipment against the security to be deposited by the consumers. Against each new gas connection, the consumer was required to deposit a sum of Rs. 1,800 (Rs. 1,000 as security for cylinder and regulator and Rs. 800 as security for rentals) in favour of the respondent-company, which was received by the dealer and passed on to the company. On surrender of the connection, the company was required to refund the amount to the consumer through the dealer as the collections were themselves made only through the dealer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Gas was merely a brand name for the gas produced by the respondent-company M/s. Hemkunt Gases P. Ltd. A rejoinder was issued by the petitioner setting forth the alleged duplicity of the respondent in denying the privity of contract between the petitioner and the respondent. The petitioner applies for winding up stating that the failure of the respondent to pay the amount due to the petitioner created a statutory presumption against the respondent for its inability to pay and that further the respondent-company having completely ceased its operation and discontinued the supply service was also liable to be wound up on just and equitable reasons. 5. It may be noticed even at the outset that the petitioner M/s. Brothers Gas Agency has been represented through Shri Madan Lal as a sole proprietor. The defence which has been set up by the respondent through its written statement states in the preliminary objection that the agreement which was entered with M/s. Brothers Gas Agency was represented only through Ramesh Chand Soni as representing the agency but the petition has been filed by another person. According to the respondent, Madan Lal was an utter stranger to the contract and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner has filed reply denying the averments contained in the written statement and particularly with reference to the averment that the petitioner was a stranger to the contract. The petitioner would state that M/s. Brothers Gas Agency was a partnership brought out on May 18, 1994 and the same was registered with the Sub-Registrar, Bangana and the partnership was dissolved in the month of November, 1994 when Shri Ramesh Chand Soni executed a deed of retirement and notified the same to Shri Madan Lal. Accordingly, Ramesh Chand Soni had retired from the partnership on November 30, 1994 and all the accounts relating to the partnership stood finalised on that date. In evidence of the partnership agreement and the subsequent retirement of Shri Ramesh Chand Soni, the petitioner would file the respective documents which are exhibited as annexures P39 and P40. At the first instance therefore M/s. Brother Gas Agency was a partnership but subsequently it came to be a proprietary concern of Madan Lal with effect from November 30, 1994. All the remittance which the petitioner had made to the respondent as security deposits made by the customers had been done only by Shri Madan Lal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited was not refunded. 10. Subsequent to the filing of the written statement, the respondent-company sought to produce assessment orders for the years 1999-2000 with the Assistant Excise and Taxation Commissioner-cum-Assessing Authority to show that the business was being run and that it was not being closed. Annexure R4 was the sales tax assessment for the year 2001-02 and annexure R5 was the assessment for the assessment year 2002-03. In reply to these documents, the petitioner sets out this objections stating that the petition was filed on May 10, 1997 and without touching upon the status of the company on the date when the petition was filed, the filing of documents relating to subsequent years had no relevance. 11. On June 26, 2005, this court recorded the rival contentions between the parties and reserving to the parties to file affidavits in support of the respective contentions, this court directed the respondent to furnish a bank guarantee of Rs. 3 lakhs without prejudice to the contentions. Such bank guarantee was also furnished but it is not clear from the records, whether the bank guarantee, which was originally furnished by Canara Bank on behalf of the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers to a letter of M/s. Himalaya Gas Services (annexure X1) where the distributor has vouched for receipt of demand draft to the tune of Rs. 6,83,500 and that the receipt of Rs. 60,000 against security deposits was still awaited. The respondent-company refers to its own letter to M/s. Himalaya Gas Services on January 9, 1996, exhibited through annexure X3 that the dealers like M/s. Brothers Gas Agency, Bangana coming within the area of M/s. Himalaya Gas Services were creating documents without any approval of the company. Strangely the respondent had also referred to the fact that the petitioner was entering into a dealership with Appenzell group (annexure X4) in violation of the terms of dealership stating that the petitioner taking a dealership with yet another company against the terms of the final engagement of the petitioner as a dealer. If the respondent had no connection at all with the petitioner, it is not understood as to how it could have complained of the petitioner making any violation of the terms of appointment as a dealer. 13. Several documents have been filed by the respondent-company referring to the assessment for the period subsequent to the year 1997 with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such an agreement itself was not denied except that the petitioner has been represented through Ramesh Chand Soni and not shown to be represented through Madan Lal. It is brought out in evidence that Madan Lal and Ramesh Chand Soni who are brothers had a partnership arrangement and Ramesh Chand had withdrawn from the partnership leaving it to the hands of Madan Lal to look after the affairs of the petitioner firm and the internal arrangement as to who shall run the firm M/s. Brothers Gas Agency shall have no relevance for the respondent so long as it is seen that the respondent had received the moneys from the petitioner representing security deposit for 510 connections and also for the regulators. 15. A dealer when he collects money from the depositors and transmits it to the respondent-company, does so by receiving the money from the customers undertaking to repay the amount at the time of surrender of the connection. As far as a customer is concerned, the right of entitlement from its dealer arises by the deposit of the money to the dealer and the dealer may therefore become answerable to the claims of customers. By the fact that the respondent-company itself does not re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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