TRILOK CHAND JAIN Vs. SWASTIKA STRIPS PVT LTD

JUDGEMENT

(1.) THE appellants' prayer for winding up the respondent -company was rejected by the learned single judge, vide judgment impugned in this appeal. It is contended that the judgment of the learned single judge was against law and facts and the learned judge has wrongly held that the goodwill amount of Rs. 1 crore of the erstwhile partnership was bogus amount. The findings of the learned single judge are stated to be against the basic concept of goodwill in law which has been claimed to be a valuable asset on the basis of some Supreme Court judgments. It is further contended that the learned single judge did not take note of the fact that the respondents owed an undisputed amount to the appellants in their capacity as creditors over and above the amount credited as goodwill. The amount owed to minors itself was well over Rs. 40,000 plus interest at the rate of 18 per cent per annum. Respondent No. 1 had undertaken to pay the amount standing credited to the accounts of the appellants as shown in the balance -sheet, annexure P -4, but the learned single judge did not take note of this important fact. The resistance to the winding up is based on a legally tenable defence and bona fide grounds. In fact, the company is alleged to be totally insolvent and was selling the bricks which made up the buildings in order to pay its dues to the Syndicate Bank. It is submitted that the respondents were hand in glove with each other in disposing of the property and pocketing the proceeds to the detriment of the appellants. The finding of the learned single judge that respondent -company was a running concern is stated to be contrary to the pleadings. It is stated that the learned single judge was not justified in commenting upon the conduct of the appellants during the interim period from the date of the filing of the company petition till the passing of the final order and did not take note of the fact that the appellants consist of persons of small means to whom the company owed about rupees ten lakhs along with interest. The respondent filed a suit in the subordinate trial court and got a private receiver appointed for making the sale of the property in order to pay back to the Syndicate Bank who was a secured creditor. While appointing the receiver the lower court did not place an embargo upon the respondents which was to the prejudice of the same. The receiver made sales between December 26, 1990, till the date of the filing of the appeal by which Rs. 30 lakhs were recovered and paid to the Syndicate Bank. It is submitted that the assets left at the date of the filing of the appeal if permitted to be sold in the manner in which the receivers have sold the earlier assets would not fetch more than Rs. 38 lakhs whereas the actual value of the property is claimed to be more than Rs. 1 crore.

(2.) AN application under Rule 9 of the Companies (Court) Rules has been moved by the Syndicate Bank with various prayers made therein but mainly with the object of protecting the interests of the bank which is claimed to be a secured creditor of the respondent -company.

(3.) WE have heard learned counsel for the parties and perused the record.