IN RE: BENGAL FLYING CLUB LIMITED Vs. STATE

JUDGEMENT

(1.) There are three Company Petitions Nos. 33, 34 and 35 of 1965. These three petitions are in the matter of application under Ss. 433, 434 and 439 of the Companies Act, 1956. These three applications are in the matter of Bengal Flying Club Ltd. In Company Petition No. 33 of 1965 the petitioner is Jogendra Chandra Das. In Company Petition No. 34 the petitioner is Amrita Sankar Ray. In Company Petition No. 35 the petitioner is Subhas Kanti Chowdhury. Company Petition No. 33 of 1965 was filed on 18 February 1965. Company Petition No. 34 of 1965 was also filed on 18 February 1965. Company Petition No. 35 was also filed on 18 February 1965. Company Petition No. 33 of 1965 was admitted on 1 March 1965. Company Petition No. 34 of 1965 was also admitted on 1 March 1965. Company Petition No. 35 was also admitted on 1 March 1965. It may be stated here that in Company Petition No. 34 of 1965 twenty one creditors are supporters of the winding -up petition and their support is based on the affidavit of Mrinal Kanti Das affirmed on 11 May 1965. The affidavit of the supporting creditors has been answered by Satyendra Kumar Roy affirmed on 6 September 1965 in Company Petition No. 34 of 1965. These three petitions were heard together. The arguments were common and questions involved were common. Company Petition No. 34 was taken out of its turn and Mr. Das, Counsel for the petitioner, advanced the leading arguments on behalf of the petitioning creditors. Counsel for the petitioning creditors in Company Petitions Nos. 33 and 35 had also advanced their arguments. Mr. Sen, Counsel on behalf of the Company dealt with all the arguments advanced on behalf of the petitioning creditors.

(2.) The petitioner in Company Petition No. 33 is Jogendra Chandra Das. His claim is for a sum of Rs. 5400/ - in respect of salary for the period 16 April 1963 to 31 August 1963. The petitioning creditor in Company Petition No. 34 of 1965 is Amrita Sankar Ray and his claim is for a sum of Rs. 29,501.97 in respect of arrears of salary, compensation, dues in Provident Fund Account. The petitioning creditor in Company Petition No. 35 of 1965, Subhas Kant Chowdhury has a claim for Rs. 1693.75 in respect of balance of salary for the months of April 1962 to August 1963 after having given a credit to the Company for the payments made from time to time.

(3.) In view of the fact that Company Petition No. 34 was taken up as the main petition, I shall deal with the facts in Company Petition No. 34 of 1965. The Bengal Flying Club Ltd. Was incorporated in the month of August 1928 as a Company limited by guarantee without any share capital. The registered office of the Company is at Behala. There are various objects of the Company and one of the objects is to bring together persons interested in the encouragement and development of aeronautics and aviation and for that purpose to provide a centre of information and advice on all matters pertaining thereto. The other principal object was to impart training to members to fly and provide facilities for flying and to afford to members all the usual privileges, advantages and accommodation for social and sporting club. The petitioner Amrita Sankar Roy was appointed Assistant Engineer of the Company in the month of December 1947 at a salary of Rs. 500/ - per month. The petitioner's claim is for salary for the years 1955 and 1956 as also salary in lieu of leave not availed of in accordance with application dated 31 October 1958 and again in the year 1959. There is also a claim for salary for the period February to May 1962 amounting to Rs. 3344/ -. There is a claim for Provident Fund dues in accordance with the resolution dated 11 April 1947 consisting of the petitioner's contributions and Club's contributions. There is a further claim in respect of Provident Fund Account discontinued by the Committee of the Club without the permission of the Commissioner of Provident Fund amounting to Rs. 956/ -The total claim is for Rs. 29.501.97. It may be stated here that though the claim in the petition is for Rs. 29,501.97, in the statutory notice under Sec. 434 of the Companies Act the claim was for the sum of Rs. 29,536.76. The petitioner alleges that the petitioner's dues have not been paid in spite of statutory notice under Sec. 434 and therefore there is the statutory presumption of inability to pay and that the Company is insolvent and unable to pay its debts. In paragraph 13 of the petition it is alleged that the Company is not carrying on any business and has suspended its business for over a year. In paragraph 14 of the petition it is alleged that it is just and equitable that the Company should be wound up.