TMI Blog1931 (3) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ing creditor in a sum of Rs. 2,806-6-0, and that on the 1st of July, 1930, the agent of the petitioning creditor duly authorized in that behalf sent the following notice purporting to be a demand under section 163(1) of the Act, to the defendant company : Dated 1st July, 1930. "Messrs. THE ARGUS FOOTWEAR, Ltd., 160, Phayr Street, Rangoon. "Dear Sirs, As attorney and on behalf of Dr. Maqbul Alam Kureshi of Bogale, I hereby demand of you the immediate payment of Rs. 3,000 due for the loan on the 30th 31st December, 1929. Failing payment to me or my principal within three weeks, legal proceeding will be adopted under the provisions of the Indian Companies Act. Yours faithfully, R.A. KURESHI, C/o. Dawood Mohd. Atcha, 79, Bhina Street, Rangoon ." On the same day this demand was duly served on the company, and on the 24th July a petition was presented by Dr. Kureshi to wind-up the company. The petition set out this demand as one of the grounds upon which the petition to wind-up the company was based. The first question that falls for determination is whether the demand served upon the company by the agent of the petitioning creditor on the 1st July, 1930, was a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he terms of O.XVI, r. 11, which provided that a person was not to be joined as a plaintiff in a suit "without his own consent in writing thereto." In the course of the argument, Lindley, L. J., observed : "It seems to me that the word 'own' in the rule is an abbreviated mode of saying 'under his hand';" and in his judgment his Lordship stated that: "When the history of the rule is looked at it will be seen that own' is an abbreviated mode of expressing what is expressed more at length in section 34 of the Common Law Procedure Act, 1852, where it is provided that persons to be added as plaintiffs must consent either in person or by writing under his, her, or their hands to be so joined. The language of that Act makes it plain that the consent must be the consent of the party himself in writing. The reason of it is intelligible. It is to prevent any discussion as to whether an authority has been given or not. A person is not to be added as a co-plaintiff, nor is his name to be used as the name of the next friend of a plaintiff, unless he has given his consent in writing, and has signed it." Lopes, L. J., added: "In my opinion, the words 'his own consent in writing in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly to sign a demand under section 163(1). Indeed, it appears that on the 1st July, 1930, Dr. Kureshi had himself signed a demand purporting to fulfil the conditions of section 163(1), but, inasmuch as the demand was not served upon the company until the 4th July, failure to company therewith could not be made a ground upon which the petition for the winding up of the company presented on 24th July could be based. In Japan Cotton Trading Co., Ltd. v. Jajodia Cotton Mills Ltd, [1927] 54 C. 345; 103 Ind. Cas.629; 31 CWN 683; AIR 1927 Cal.612 , it was held by a Division Bench of the Calcutta High Court that a demand purporting to conform to the provisions of section 163(1), which was signed not by the creditor, but by his solicitors, was not a demand under the hand of the creditor within section 163(1). Rankin, C.J., in the course of his judgment, observed that: "The effect of the statutory notice is that unless the debt is paid within three weeks or some arrangement is made with the creditors, the company is in the position of being conclusively estopped from denying that it is unable to pay its debts. It is a highly formal and important document, although it is perfectly true ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Jessel, M.R. They were not bound to enter into particulars to meet your general allegation of insolvency." In my opinion, upon the materials before the learned trial judge, there was no evidence to justify a finding that the company was unable to pay its debts. On the 24th July, the petition for winding up the company was presented, and on the 5th August the company paid to the petitioning creditor in full the whole sum for which the company was indebted to the petitioning creditor, and, in my opinion, the learned Judge rightly refused to allow the petitioning creditor in the circumstances to adduce oral evidence in the attempt to prove the insolvency of the company. There was also a third ground upon which, in my opinion, the petition was properly dismissed by the learned Judge in insolvency. It appears that the secretary of the company, one Sirpaul, managing had been the proprietor of a firm which was the agent of the Argus Footwear, Ltd. On the 30th December,1929, Sirpaul entered into an agreement with Dr. Kureshi in which it was provided, inter alia, that Dr. Kureshi should purchase from Sirpaul 1290 shares in the company at Rs. 10 a share, 500 shares to be paid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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