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TMI Blog1919 (2) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... same conditions in and subject to which appeals may be had from any order or decision of the same Court in cases within its ordinary jurisdiction. 3. It was argued that was the only section dealing with the matter of appeals from decisions made in the winding-up of companies, and that consequently the right of appeal depended upon Cl. 15, Letters Patent, which applied to this Court. Further, that the decision of the learned Judge in this matter was not a judgment within the meaning of Cl. 15, Letters Patent, and that is the point which we have to decide in the first instance. Now the application to remove the petition from the file was based upon certain grounds which are referred to in the learned Judge's judgment. After considering those points he came to the conclusion that at all events at that stage of the proceedings he ought not to accede to the petitioner's request; and he said at the end of his judgment: For these reasons I do not think, I ought to accede to the application that is made to me at this stage, and I think that the Court ought only to interfere in a case of this in limine if there is an absolutely overwhelming case. 4. The matter howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can be no further question with respect to his right thereto the decision will be final. The result in my opinion is that the terms of the order read with the judgment make the decision of Greaves, J., a judgment within the meaning of Cl. 15, Letters Patent. The learned counsel, Sir Benode, yesterday argued that the four points which had been raised before Greaves, J., could be raised at the hearing of the petition and would then be finally gone into and decided. Having regard to what I have said it is clear that if this appeal is dismissed those points could not be gone into at the hearing of the petition because the judgment of Greaves J., will stand and the order which is based upon that judgment will also stand and by reason of the terms of the order if this appeal is dismissed the Maharaja will retain the money and the petition is to be withdrawn and there will be no further hearing of the petition. Consequently I think this is a judgment within the meaning of Cl. 15, Letters Patent and that there is a right of appeal. I desire to add that the circumstances of this case are peculiar and quite out of the ordinary having regard to the facts I have mentioned and are not like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... who passed the order think that no appeal lay? The answer must I think be in the negative. To hold now that no appeal does in fact lie would have this effect that the Maharaja would retain without possibility of return the ₹ 2,09,000 upon the judgment of Greaves, J., which would be final without possibility of further proceedings or appeal. Sir Benode Mitter argued that all the questions dealt with in the judgment, would be open on the further hearing. But this is not the fact. They can never be argued again if this appeal be dismissed because according to the order if the appeal be dismissed then the Maharaja retains the money paid to him and withdraws his petition bringing those proceedings to an end so far as the petitioner Maharaja is concerned. The effect of the order passed is thus to make the judgment which preceded it final. I think there is under the circumstances of this case which are peculiar an appeal. It is not necessary having regard to these peculiar features of the case to enter into a discussion of the more general argument on the question of appeal which was addressed to us. Whether as Mr. Sarkar argues the issues should be tried on further evidence is a ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was dismissed, the Maharaja was to withdraw the petition for winding up; on which of course, he would retain the sum so paid. 9. After we had given judgment, basing our decision on the second part of the directions in this order, without deciding what would have been the case had those directions not been contained in the order, Mr. Sircar for the respondent-said that he would consent to the second part of the order being reserved. This was done with the view to the contention that if this part of the order was removed, there would be no appeal as regards, the remaining part of the order dismissing the appellant's application for stay of winding up proceedings. This proposal was not assented to by counsel for the appellant company who contended that the order and the appeal therefrom must be dealt with as a whole. This contention was right. The respondent could not, after our judgment had been given holding that there was an appeal from the whole order, by any such over as to part of the order, affect the judgment so as to make it necessary to give a second judgment on the question whether there would or would not be an appeal, had the order been made without the second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company and the respondent for the recovery of certain deeds and securities which the plaintiff alleged he had pledged to the appellant company as security for advances made, and which he alleged were wrongfully retained by the respondent, after the plaintiff had paid off the amount due from him to the appellant company. In April 1916 the respondent instituted a suit against the appellant company for the recovery of ₹ 2,83,747 alleged to be due to him in respect of principal and interest on account of advances made by him to the company, and this sum comprised the alleged debt upon which the winding up petition was based. In this suit the company set up certain defences, amongst them being allegations: (1) That the respondent being a director of the company, was not entitled to contract with the company and to charge any interest on deposits made by him or to make any profits out of any transaction with the appellant company, and that he was liable to account in respect of any profits made by him. In this connexion the company relied upon a statement in the affidavit of R. Mukerjee, upon which the application to Greaves, J., was based, that the respondent, while he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o stay proceedings where they amount to an abuse of its process: this is a well-recognized principle and it was argued that in this case the company had not neglected to pay the sum demanded within the meaning of Section 163(1) of the Companies Act. Reliance was placed upon the judgment of Sir G. Jessel, M.R, in London and Paris Banking Corporation, In re (1), in which case he was dealing with the English statute which is in similar terms to the Indian Act, and in which he said: Negligence is a term which is well known to the law. Negligence in paying a debt on demand, as I understand it, is omitting to pay without reasonable excuse. Mere omission by itself does not amount to negligence. Therefore I should hold, upon the words of the statute, that where a debt is bona fide disputed by the debtor, and the debtor alleges, for example, that the demand for goods sold and delivered is excessive, and says that he, the debtor, is willing to pay such sum as he is either advised by competent valuers to pay, or as he himself considers a fair sum for the goods, then in that case he has not neglected to pay, and is not within the wording of the statute. 14. In this case the company ..... X X X X Extracts X X X X X X X X Extracts X X X X
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