CHHAYABANI P LTD Vs. STATE

JUDGEMENT

(1.) This is an application for winding up which was presented on the 29th of January, 1979, and on the returnable date notice was directed to be served on the company along with a copy of the petition. The company appeared and took direction for filing affidavit to show cause why the petition should not be admitted. The petitioning creditors also obtained leave to file an affidavit in reply. Thereafter, the matter was mentioned several times before me for the court order but ultimately nothing happened and the matter was heard.

(2.) The winding-up petition is presented by the heirs and legal representatives of a deceased creditor of the company. After serving a statutory notice of demand under Section 434 of the Companies Act, 1956, dated the 28th of August, 1978, the creditor, Shri Aruendra Kishore Roy Chowdhury, died intestate on the 29th November, 1978, leaving behind the petitioners, Mrs. Sukriti Devi Chowdhurani, the widow, petitioner No. 2, Shri Arup Roy Chowdhury, the son, and the petitioner No. 3, Miss Ajapa Roy Chowdhury, and petitioner No. 4, Miss Ajoya Roy Chowdhury, two daughters. The claim arises out of the loans advanced by the said deceased creditor, Aruendra Kishore Roy Chowdhury, on the 8th of January, 1977, 10th of January, 1977, and 15th of January, 1977, Rs. 1,25,000, Rs. 75,000 and Rs. 25,000, respectively, to the company for the company's business particularly for the print and publicity of a picture known as " Sabyasachi " and the company duly executed three promissory notes on the respective dates payable on demand with interest @ 8% on the sum of Rs. 2,00,000 covered by the promissory notes dated the 8th and 10th of January, 1977, and @ 12% on the promissory note for Rs. 25,000 dated the 15th January, 1977. It appears that in order to prevent the said creditor, Aruendra Kishore Roy Chowdhury, since deceased, to present any winding-up petition, the company filed a suit, being Title Suit No. 1839 of 1978 (Chhayabani Private Limited v. Aruendra Kishore Roy Chowdhury) before the 8th Bench, City Civil Court, on the 19th of September, 1978, and obtained an ex parte order of ad interim injunction, restraining the said Aruendra Kishore Roy Chowdhury, since deceased, from filing any winding-up petition before this court under Section 434 of the Companies Act, 1956. It appears that the said City Civil Court had no jurisdiction under the Companies Act and, therefore, if any order has been passed that must be deemed to be without jurisdiction and a nullity. It is further alleged by the petitioner that the suit before the City Civil Court has abated and as no substitution has been effected after the death of the said Aruendra Kishore Roy Chowdhury, the sole defendant in the suit, whereas the respondent company alleged that they were taking steps for substitution in the said City Civil Court suit.

(3.) Mr. Nirmalendu Roy who appeared for the petitioning creditors submitted, drawing my attention to the promissory notes and also the statutory notice and replies thereto, that there is no bona fide dispute whatsoever raised by the company to the claim of the petitioning creditors. He submitted that the company's contention sought to be raised in reply to the said statutory notice, and also the said false, frivolous and vexatious suit filed before the City Civil Court, are not bona fide, but have been raised for the purpose of weaving a cobweb and amusing itself. Mr. Roy submitted that the said City Civil Court has no jurisdiction to entertain the said suit, as the said suit, in substance, is for forestalling the said Aruendra Kishore Roy Chowdhury from presenting a winding-up petition in respect of his said claim for which the statutory notice was served under Section 434 of the Companies Act on the company. It cannot be disputed that the said City Civil Court has no jurisdiction to deal with any matter relating to or arising out of the Companies Act and the Company cannot by some subterfuge and camouflage invoke the jurisdiction of the City Civil Court in respect of the company, preventing any petitioning creditor from presenting a winding-up petition against it under the Companies Act. The company admits the loan but is trying to dispute that the said loan was advanced for acquiring the world distribution right of a Bengali film, " Job Charnaker Bibi ", and it is alleged that the said creditor agreed and it is further alleged that the said creditor agreed to be paid out of the box office collection of the said film. The company has specifically admitted the execution of the two promissory notes, one for Rs. 2,00,000 and another for Rs. 25,000 but alleged that those were collateral securities and were not to be enforced. Reading the plaint filed before the City Civil Court as a whole, which is the principle for the construction of a plaint, it is quite clear that the claim in the plaint was in substance for obtaining injunction restraining the said deceased creditor, Shri Aruendra Kishore Roy Chowdhury, the only defendant in the said City Civil Court suit, for obtaining an injunction restraining him from giving effect to the notice under Section 434 of the Companies Act, 1956, and, therefore, the said suit and order made therein are without jurisdiction and are nullities. Therefore, I am of the view that there is no substance or merit in the defence sought to be raised by the company and there is no bona fide dispute raised to the claim of the petitioning creditors.