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TMI Blog1947 (4) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... ary objection that since none of the petitioners had held any share for more than six months before the presentation of that petition, they had no right to prefer the petition. Munir, J. accepted this contention of Mr. Gauba and allowed the petitioners to make a suitable amendment in the petition. On the next date, i.e., 27th November 1946, the petitioners' counsel not only did not amend the petition but expressed his desire to with draw it and it was on this that the petition was dismissed. The order which is very short may be quoted with advantage: Mr. Narotam Singh does not wish to amend the petition and withdraws it. On the allegations in the petition it is clearly a premature petition. It is accordingly dismissed with costs not exceeding ₹ 100. 4. The petition having been dismissed as premature and there being no allegation that the present petition is vitiated by a similar defect the objection must be overruled. 5. As regards the second objection, the respondent's position is that in a meeting of the directors held on 6th March 1947 a further call of 25% on preference and ordinary shares was made. It is admitted by the petitioners that none of them have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioners' counsel took his stand upon the English case In re Steam Stoker Co. (1875) 32 L.T. 143 in which it was held that a petition for winding up a company presented by a shareholder who, at the date of such presentation, was in arrear of payment of calls due from him to the company would, on that ground, be dismissed. The correctness of this view was doubted by the learned Judge himself who decided this case In re Diamond Fuel Co. (1880) 13 Ch. D. 400. That was also a case relating to an application for winding up of a company and the counsel for the appellant urged that since at the time when the petition came on to be heard the petitioner was in default for payment of calls no order for winding up should have been made. In support of his contention the counsel cited In re Steam Stoker Co. (1875) 32 L.T. 143. The learned Judge (James L.J.) made the following observations: I think that this objection cannot be maintained. I think that in In re European Assurance Society I was rather supplementing the Act than interpreting it. It is of course possible to visualize a case in which the failure of a contributory to pay a further call to the company, legally and val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot return most of them till the end of October 1946. It was further contended that when the first petition was put in, the company was called upon to take all records to Court every day and it had hardly any time to prepare a statutory report or to take steps for summoning the statutory meeting. The petitioners denied that they had any hand in the criminal proceedings or that they did anything which could have the effect of preventing the company from preparing the statutory report or call the statutory meeting. In addition it was urged on their behalf that even if all the allegations made by the company in this connexion in its written statement be accepted as true, it had ample time to call a meeting to prepare the report and to call a statutory meeting after the bulk of the records, as is mentioned in para. 5 (c) of the written statement of the company, was returned to them under the orders of this Court. As regards the business the counsel for the respondent argued that though for reasons over which the company had no control it had not yet been able to buy any air-craft and it was not in a position to start charter services, a good deal had already been done to advance their b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt a Provisional Liquidator as a matter of course, on the presentation of the petition. But where there is an opposition to it, I never do, because I might always paralise all the affairs of the Company, and afterwards refuse to make the winding up order at all. But when the Directors themselves apply or do not oppose the winding-up, then, I appoint the Provisional Liquidator. This rule of practice was subsequently approved by the Court in appeal in Oilfoden Building Society (1868) 8 Ch. A. 462. 11. As regards the fourth point taken by the petitioners' counsel, certain facts have been brought to my notice which make me think that the petitioners' complaint that some of the books which the company is required to keep according to law, particularly the shares-register and the accounts books, are not properly kept. It is also alleged, and this allegation is not denied on behalf of the respondent, that no ledger is maintained. In the course of argument Mr. Indar Dev Dua referred to certain items from the petty cash book and tried to show that the entries in the other cash book did not correspond with entries in the petty cash book and that certain amounts that were receiv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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