MARTIN BURN LTD Vs. BHAGIRATH MURARKA

JUDGEMENT

(1.) This appeal arises from the judgment and order dated March 30, 1978, passed by Roy Chowdhury J. on the petition for winding up the appellant-company. The learned judge admitted the petition and inter alia, directed advertisement to be issued. The further order was that if the company would pay Rs. 8,50,000 together with interest at the rate of 18% per annum from February 1, 1977, until payment and also the assessed costs of sixty gold mohurs before May 31, 1978, the winding-up petition would remain permanently stayed and in default the advertisement was to be published as directed. Regarding the remaining portion of the claim for Rs. 1,50,000, the order was that the petitioning-creditor would be at liberty to take appropriate steps. The learned judge held that the said portion of the claim was bona fide disputed by the company. The effect of the last portion of the order was that the winding-up petition as to the part of the claim to the extent of Rs. 1,50,000 was directed to be permanently stayed.

(2.) The petitioning-creditor's claim in the petition is for about Rs. 10 lakhs as money lent and advanced to the company at its request for the purr pose of its business on the terms and conditions, inter alia, that the said amount would be repayable by the company to the petitioning-creditor on demand with interest at the rate of 2% per mensem. Such interest'was to be paid by the company to the petitioning-creditor every month and month by month and in the event of non-payment of interest as aforesaid the same would form part of the principal and would carry further interest at the same rate. In other words, the compound interest as aforesaid would be payable. There is no writing in respect of the said agreement except that the petitioning-creditor has referred to four cheques, the first three of which were drawn in favour of Martin Burn Ltd. and the last one was in favour of one Sagar Lines (India) Private Ltd. having its registered office at the same address where the registered office of Martin Burn Ltd, is situate. It is stated that in terms of the said agreement the petitioning-creditor lent and advanced the said sum of Rs. 10 lakhs to the company. Regarding the first cheque the same was drawn not by the petitioning-creditor but by one Francis Klein & Co. Ltd. for a sum of Rs. 5 lakhs. The said cheque was dated January 31, 1977. The next two cheques were also of the same date but both were drawn by the petitioning-creditor in favour of Martin Burn Ltd. The respective amounts were for Rs. 2 lakhs and for Rs. 1,50,000. The total amount of the said three cheques was Rs. 8,50,000. The fourth cheque was drawn by the petitioning-creditor in favour of Sagar Lines (India) Private Ltd. and the same was for a sum of Rs. 1,50,000.

(3.) The definite case as made out in the petition for winding up was that pursuant to the terms and conditions of the agreement, the petitioning-creditor lent and advanced the sum of Rs. 10 lakhs to the company and the company received the same from the petitioning-creditor and by the notice under Section 434 also the same definite assertion was made to the aforesaid effect. The notice, however, was silent about the alternative case as made out in the petition under Section 70 of the Indian Contract Act where it was stated that the said sum was paid by the petitioning-creditor not intending to do so gratuitously and the company had enjoyed the benefit thereof and, accordingly, the company was liable to compensate the petitioning-creditor to the extentof the said sum of Rs. 11,57,205.02. In the petition, the said sum of Rs. 11,57,205.02 has been shown to have been arrived at on the basis of calculation at the compound rate of interest up to September 15, 1977.