TMI Blog1977 (6) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... dent-company started a business under the name and style of "Shadiram and Sons" as guardian of his minor son. This firm at some point of time, due to certain civil proceedings between S.K. Somani and his brothers, was converted into a partnership. Accordingly, a partnership was formed with the wives of the two brothers and the minor son of S.K. Somani who was admitted to the benefits of the partnership. This partnership came into effect on April 1, 1971. Even on a fair appreciation of the constitution of the partnership firm and the private limited company, it is fairly clear that one is telescopicable into the other and some of the members of the family or their wives were interested either in the partnership or in the private limited company. There were transactions between the private limited company and the partnership firm. It is claimed that a sum of Rs. 4,47,511.58 was payable by the company together with interest at 12 per cent. per annum and a statutory demand was made as against the company for repayment of the same and as the reply thereto by the company was not satisfactory, the appellant came up with an application under section 433 of the Companies Act for winding up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ) has to be understood in a practical and pragmatic sense. As the assistance of the company court cannot be sought for realisation of the debts due to a creditor or for its enforcement under the guise of a petition for winding up, caution should be observed in a case where the main objection to the petition to wind up is that the debt is disputed. A given case might present a slight complication if the debt is admitted, but discharge is pleaded. Undoubtedly, in a case where the allegation is that the debtor-company is indebted and is unable to pay its debts, the initial burden is on the petitioning creditor who alleges the existence and reality of such a debt. But when the debtor-company admits the debt and raises a plea of discharge either in part or in whole of the debt claimed, then the burden of proof normally shifts to the debtor-company to prove such a discharge at least to the extent pleaded so as to satisfy the court that the debt as claimed is not due and that, therefore, there is a bona fide dispute by the company regarding the existence of such a debt. In such circumstances it is for the, company court to discover through a reasonable lens of investigation whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the account books. The attack is made on two grounds. The executant of the receipt has not been proved to be one authorised by Hanuman Steel Traders to receive the amount and that his books of account did not contain any entry regarding the supply of materials by Hanuman Steel Traders to the appellant-firm. It is in this context, we would refer to one particular suggestion made by the counsel for the company when his client was in the witness box. The question was: "What was the nature of the transactions between the firm and the company? The answer was: "The money required by the firm will be taken from the company and if the company required funds, they will take from the firm's funds. They were more or less current account. Regular transactions were there up-to-date and money was transferred from one to another." This particular suggestion in chief examination was not even adverted to in cross-examination, and no question was put to the witness to show that such was not the practice and that there was no inter-mixing for commercial purpose of the funds of the partnership with that of the limited company. This significant answer by one of the directors of the company establis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office of the appellant-firm at Calcutta was corresponding with N. K. Somani, personally who had nothing to do with the appellant-firm or its constituents but who is a director of the respondent-company, throws abundant light upon the fact that the partnership-firm and the incorporate company are reflections of one or the other. Therefore, there is nothing strange in accepting the version of the director of the company sought to be liquidated that he paid a sum of Rs. 46,000 in answer to the call made by the branch office of the appellant-firm from Calcutta. The third item relates to the adjustment made and it was to the extent of Rs. 2,51,511.28. This amount was due to Hemalatha Somani, the wife of R.W. 1 examined in this case and this was admittedly shown as a credit in her favour in the accounts of the appellant-firm. There were certain internal bickerings between the parties in or about November or December, 1971. R. W. 1 who was examined on behalf of the company says as follows : "Q. You say that your wife wanted money from Shadiram Sons ? A. Credit balance was to be transferred to Southern Aviation. Q. Did you make any debit entry on behalf of your wife in the acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
