9911796707
TMI Blog2010 (10) TMI 910X X X X Extracts X X X X X X X X Extracts X X X X ..... editor.In the facts and circumstances above, I would admit the winding up application on just and equitable grounds and also on the ground that the company is prima facie unable to pay the sum of ₹ 2,04,360. However, I note that the balance claim of the petitioning creditor, has to be established in a suit. Therefore, this winding up application is admitted. The application should be advertised once in any English newspaper having circulation of over 50,000 copies in West Bengal and any Bengali newspaper of like circulation. Such advertisement should be made within four weeks from date. Publication in the Official Gazette is dispensed with. List this application five weeks hence. - C.P. NO. 119 OF 1989 - - - Dated:- 4-10-2010 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some time, from the early 80 s the petitioning creditor was assisting the company to run its business. There is absolutely no doubt in my mind about this. This fact is not denied in the reply to the statutory notice or in the affidavit in opposition. However, from April 1, 1987 the management of the company changed. It has been submitted before me that although the management of the company changed, the managing director remained the same. 4. The cause of action in this winding up application is founded on a claim by the petitioning creditor for payment, for providing accommodation and rendering various services and supplying miscellaneous items to the company for the said period up to March 31, 1987. The sum claimed in the winding up not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... records as received so far we neither find any bills relating to the statement enclosed with your letter nor do we find any agreement. In the statement enclosed to the letter, it has been stated that amounts as mentioned in the statement have been due as on November 18, 1988, but you have omitted to mention from which period. It is necessary for us to know the period during which the amounts mentioned in your letter are claimed to have arisen. The company under the new management that is to say from April 1, 1987 have not taken any of the services or facilities or occupied any accommodation from your client nor have the new management made any gunny export or availed of any of the services of your client s Gunny Export Department or Dia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... excepting that of Share Registration services for which we agree to pay you at a monthly rate as mutually agreed between us." As the company went under the umbrella provided by the Sick Industrial Companies (Special Provisions) Act, 1985 on and from April 1, 1987, the claims of the petitioning creditor, prior to March 31, 1984 in my opinion, would be barred by the laws of limitation, on the assumption that the period of limitation is three years for all claims. (Section 22(5) of SICA read with the Limitation Act, 1963) 8. I had invited the parties to submit a calculation sheet to show which of the claims were barred by limitation. According to such calculation sheet submitted by the company and not denied by the petitioning creditor, Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Rs. 2,04,360 from April 1, 1984 to March 31, 1987. 12. It is true that the petitioning creditor is unable to produce any documents from where it may be reasonably plain that the claimed amount is payable to them. What I do not appreciate is the attitude of the company that they will pay nothing. Even after admission that they occupied a part of the property of the petitioning creditor and even after admission that they availed of the services of the petitioning creditor. If the stand of the company would have been, on the basis of the letter dated May 15, 1987, that they were prepared to pay some part of the claim on account of rent or licence fee for occupation, I could have appreciated their conduct. 13. As the substantial part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vant period when the company had asked the petitioning creditor to restore the records of the company, alleging that they have taken them away. 16. If a company is unable to produce or maintain its records it is a fit ground to order its winding up on just and equitable grounds. Further, the above conduct of the company shows they are somewhat lacking in commercial morality, which is another reason to order winding up on just and equitable grounds as discussed at page 3693 of the 16th edition, 2006 reprint of Ramaiya on Guide to the Companies Act. 17. In any event, Rs. 2,04,360 is a very reasonable claim for occupation of the premises in question. This sum is prima facie payable by the company to the petitioning creditor. 18. In the f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
