HARINAGAR SUGAR MILLS LTD Vs. M W PARDHAN

JUDGEMENT

(1.) THIS is an appeal preferred by Messrs. Haringage Sugar Mills Ltd. (Hereinafter called "the Company" ) against the order passed by he Mr. Justice Kantawala on 22nd September 1964 in company petition No. 4 of the admitting the petition and directing the advertisement to be given on and after the 13th October 1964 in the "indian Express' and "bombay Samchar" and the Government Gazette.

(2.) A few facts giving rise to this appeal maybe stated. The company was incorporated in January 1938 and its authorized capital consists of 12500 equity shares of Rs. 100 each and 25000 equity shares of Rs. 10/- each. The issued and subscribed capital of the company concise of the 7500 shares of Rs. 100/- each 25000 equity shares of Rs. 10/- each. All these shares are fully paid up. Out of this subscribes capital of the company 788, equity shares of The 100 each and 14265 equity shares to Rs. 10 each stand is the name of Narayanal Bansila who is the chairman of the Board of the Directors of he company. Naraylal Bansilal is also the karta and manager of joint Hindu family consisting of himself his sons and daughters and the shares standing intake name of Naraynalal Bansilal were purchased in out of the funds belonging to the joint family. According to the court Receiver who was appointed Receiver High Court suit No. 224 a of 1961and who presented the petition for winding, up a large also o number of other shares of the company were also purchased out the fund belonging to the joint family and wee taken in the names of kishanlal Murlidhar Jayakrishans Gangadas and sevaram Ranchhoddas as the Benamidars for the joint family. (2a) It appears that prior to the 8th of March 1956 the joint family of Narayanlal Bansilal owned a sugar farm at Harinagar in the state of Bihar. On 8th March 1956 by a registered conveyances made between Narayanlal Bansilal and his sons Balkrishna Narayanalal Naraynalal on the hand and the company on the other, the said sugrances farm with the all the crops, buildings agricultural equipment's bridges, tool pumping live - stock carts et. Was sold to the company for Rupees forty Lakhs out of this price of Rupees Forty lakhs, it appears the company paid to the vendors (Narayanalal and his three's sons) a sum of Rs. Ten lakhs on 31st January 1956 and it was agreed that the balances of Rupees thirty lakhs should be paid by quartile installments of Rs. 2,50,000/- each the first of such quarterly installment being payable at the end of the subsequent installments were payable at the end the each subsequent quarter. The register d conveyance dated 8th March 1956 further provided that if the company failed to pay the vendors any oft said installment of Rs. 2,50,000/- on the company should pay interest the at the rate of 5 percent t per annum to the vendors on the amount of the unpaid installments. It future paper that after the execution of the conveyances the company paid to the vendors on tow installments of Rs. 2, 50,000/- each but failed up to pay the remaining installment aggregating to Rupees twenty - five lakhs and this is the debt which was claimed by the petitioner [the court receiver] under a statutory notice upon neglect to pay the same a winding up petitions was presented by the petitioner under following circumstances.

(3.) IN or about July 1961 Madhusudanlal, one of the sons of Narayanalal filed a partition suit on the Original side the this court and being suit No. 224 of 1961 against Narayanlal and others claiming certain share in the joint others claiming certain against share the joint family properties and the after the filing the suit madhustandal took out a Notice of Motions for appointment of court Receiver as the Receiver of joint family propitious. On 20th October 1961 the Court appointed the court Receiver as the Receiver of all the joint family proper ties with all powers under Order XL Rule 1 Clause 9d) of the Civil procedure Code. After the court receive thus came on the scene the court Receiver issued statutory notice on 28 the June 1962 an under section 434 of the Indian companies act to the company requiring the company to make payment of Rupees twenty-five lakhs with interest to the Additional Collector of Bombay and by that the notice the court Receiver further stated the if the said payment was not made within 21 days of the receipt of the notice proceeding for winding up of the company will be adopted without any further intimation. On 17th July 1962 the company sent a reapply of the court Receiver raising several contention. In was contend that a sum of Rupees twenty - five lakhs and odd was not but that a per the company balance - sheet the said amount was due and payable to Narayuanlal bansilal and his three sons who were the vendors under the conveyed that the conveyances dated 8th July 1956. It was further contend that in the installment due under the registered conveyances court not be paid by the company on accept of a notice of attachment dated 24th July 1956 that had been issued and served upon the company be the Additional Income - tax officer, section v. Central Bombay under section 46 (5 -A) of the Indian Income - tax officer Act 1922. The company further contended that in any event the claim for the Rupees twenty - five lakhs had become barred by the law of limitation. In view of the these contentions the accompany pointed out that the there was no question of payment of the said amount of Rupees twenty - five lakhs to Additional Collector of Bombay as required to by the court receiver an the company further informed the court receive that the inspire oft these facts being brought his notice if any steps of these fact being up to the company were taken. Since the statutory notice that the issued by the court Receiver on 28th June 1962 was not complied on with by the winding company the Court Receiver presented a winding up petition being company petition No. 4 of 1964 on 10th January 1964. After the petition was accepted notice was issued to the company and the company put in affidavit in the reply showing cause against the petition. After hearing the parties. The learned judge by the his order dated 22n September 1964 admitted the petition and directed that advertisement be given in newspapers mentioned in this order and the Gazette. It is against the judgment and order that has been passed by the learned judge the present appeal has been preferred by the company before us.