1998 (8) TMI 454 - HC - Companies Law

Summary

Issues Involved:
1. Application for winding up the respondent/company under section 433(e) of the Companies Act, 1956.
2. Alleged debt owed by the respondent/company to the petitioner.
3. Validity of the petition due to non-joinder of other trustees and beneficiaries.
4. Set-off claims by the respondent/company.
5. Maintainability of the petition under section 48 of the Trust Act and section 45 of the Contract Act.

Detailed Analysis:

1. Application for Winding Up:
The petitioner filed an application under section 433(e) of the Companies Act, 1956, seeking the winding up of the respondent/company on the grounds of its inability to pay a debt amounting to Rs. 8,80,000, including principal and interest. The petitioner alleged that despite demands made through registered and statutory notices, the respondent/company failed to pay the debt.

2. Alleged Debt Owed by the Respondent/Company:
The petitioner claimed that Vikas Trust had deposited Rs. 6 lakhs with the respondent/Nucon as a security deposit under a selling agency agreement dated 12-10-1981, carrying an interest of 10% per annum. The respondent/company acknowledged the receipt of Rs. 6 lakhs and agreed to pay interest. However, the respondent countered that the petitioner was liable for losses incurred by Nucon and owed money to SCC, a sister concern.

3. Validity of the Petition Due to Non-Joinder of Other Trustees and Beneficiaries:
The respondent argued that the petition was not maintainable as other trustees of Vikas Trust were not impleaded, violating section 48 of the Trust Act. Additionally, it was contended that under section 45 of the Contract Act, all co-promisees must join in the action. The court noted that the trust was dissolved on 2-6-1988, and Vikas Jalan was substituted in place of the Trust. The court allowed the petitioner to lead evidence regarding the payment of shares to Kavita Jalan or to make an application for the addition of necessary parties.

4. Set-off Claims by the Respondent/Company:
The respondent claimed set-offs for amounts allegedly owed by Vikas Trust and the joint Hindu family to Nucon and SCC. The court found that the respondent did not provide sufficient evidence to ascertain the exact amount of losses or file a suit for recovery within the limitation period, thus making the set-off claims invalid and barred by limitation.

5. Maintainability of the Petition Under Section 48 of the Trust Act and Section 45 of the Contract Act:
The court examined whether the non-joinder of other trustees and beneficiaries rendered the petition non-maintainable. It was concluded that while the defect was formal and could be corrected by allowing the petitioner to amend the petition, the subsequent dissolution of the trust and substitution of Vikas Jalan as the petitioner mitigated the issue. The court emphasized that the primary question was whether the debt was genuine, which was found to be true.

Conclusion:
The court ordered that the petition for winding up the respondent/company be admitted and advertised, as the debt was genuine. The petitioner was given an opportunity to lead evidence regarding the payment of shares to Kavita Jalan or to amend the petition to include necessary parties. The operation of the order was suspended for two weeks to allow the respondent to appeal. The case was posted for further enquiry on 14-10-1998.