EAST KAJORIA COLLIERIES PRIVATE LTD Vs. STATE

JUDGEMENT

(1.) This is an application for an order for winding up of East Kajoria Collieries (P.) Ltd. (hereinafter referred to as the company) on the ground that the company has failed to pay the petitioner's claim for Rs. 48,007.02 nP. The application has certain strange and peculiar features. The petitioner is a company, which for some time was the managing agent of the company. It is alleged that, as such managing agent, the petitioner lent and advanced to the company diverse sums for the purpose of the company's business. It is further alleged that the sums were advanced in a mutual open and current account. The petitioner's case is that after adjusting the amounts previously paid, the balance due on April 1, 1960, was Rs. 49,490.07 nP. It is also alleged in the petition that the company, through its directors, verbally agreed to pay interest at 9 per cent. per annum. A statutory notice for Rs. 48,143.02 nP. was served upon the company but the company failed and neglected to pay the sum. It is alleged that the amount now due to the petitioner is Rs. 48,oo7'02 nP. The petition is verified by one Jogesh Chandra Dutt, who is a director of the petitioner-company. The same person is also one of the directors of the company. Thus, it is clear that the directors who are controlling the petitioner-company are also controlling the company which is sought to be wound up. The other person who is also a director both of the petitioner-company and of the company is one A. R. Mukherjee, who apart from being a director of both the petitioner and the company, is also a director of another company which claims to be a creditor of the company in the sum of Rs. 2,42,500. This sum, it is alleged, is due to a company known as A. R. Limited of which the said A. R. Mukherjee is also a director. In effect, therefore, this application is the result of a concert between the same group of persons, who are controlling the affairs of the said two companies claiming to be creditors of the company. It is to be noticed, however, that the address of the petitioner is 38, Lake Road, Calcutta, It is admitted that the company is also carrying on business at the same address. The said Jogesh Chandra Dutt in the affidavit affirmed by him on May 15, 1963, stated that he is a tenant at No. 38, Lake Road, and allowed the debtor company to occupy a portion of the premises.

(2.) After receipt of the statutory notice, a reply to the same was sent by the company's secretary on November 3, 1962. In this letter, the secretary of the company obligingly admitted the indebtedness of the company for the sum of Rs. 49,490-02 nP. and further admitted the inability of the company to pay the sum. This admission by the company of the debt and also of the inability to pay is of some importance because the learned advocate for the petitioner placed great reliance upon this admission by the company of the debt and also of the inability of the company to pay the same.

(3.) The petitioner is relying upon a copy of the accounts which has been set out in the annexure to the petition. In this account, it appears that on April 1, 1960, there was a debit balance against the company for Rs. 49,490-02 nP. Thereafter, various payments appear to have been made by the company and ultimately the balance due to the petitioner is shown at Rs. 48,007.02 nP. It is curious, however, that this account does not show how the moneys were advanced by the petitioner to the company and how the debit balance of the sum of Rs. 49,490.02 nP. was arrived at on April 1, 1960. Apart from this evidence of indebtedness, the petitioner has not produced any other evidence of the indebtedness of the company. In paragraph 6 of the petition, it is alleged that, between the years 1947 and 1960, various sums were advanced by the petitioner to the company. No particulars of such advances have been set out either in the body of the petition or in the accounts annexed thereto. In effect, therefore, there is no evidence before this court of the loans alleged to have been made by the petitioner to the company, other than the debit balance on April 1, 1960.