TMI Blog1995 (12) TMI 280X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 2,51,677 which are the outstanding arrears of royalty payable for the year ending with January 31, 1985, together with interest, in spite of statutory notice issued under section 434 of the Act. According to the petitioner, it entered into an agreement with the respondent-company on March 17, 1980, whereunder it agreed to provide technical know-how for the manufacture of electrodes for which the respondent has to pay royalty amount for a period of 15 years at 5 per cent. of the sale value, which was later reduced to 3 per cent. The accounting year of the respondent-company ended with January 31, during that time. To the letter issued by the petitioner on December 10, 1986, demanding payment of Rs. 3,74,648 towards the amount of royalty p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the respondent-company is liable to pay Rs. 2,51,677 to the petitioner in respect of royalty arrears payable till January 31, 1985? ( ii )Whether the non-payment of the same constitutes a ground for winding up the respondent-company? During the pendency of the company petition, Rs. 25,000 was paid by the respondent on December 27, 1990, to the petitioner by cheque dated December 5, 1990. During the hearing of the arguments, the respondent-company raised a preliminary objection that the company petition is not maintainable under the proviso to rule 21 of the Companies (Court) Rules, 1959 (for short "the Rules"), as it is not filed by a validly constituted attorney and that Sri C.K. Padmanabhan, who verified the petition, is not authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company petition. Along with the affidavit, he filed a true copy of the resolution passed by the board of directors at its meeting at Indore, on September 6, 1988, authorising Sri C.K. Padmanabhan to sign and file the winding up petition against the respondent-company and to sign necessary papers as may be required for this purpose. It was also stated in the resolution that Sri C.K. Padmanabhan might be given power of attorney by the company. It is not clear whether any power of attorney has been issued. No copy has been filed by the petitioner. Mr. Y. Ratnakar, learned counsel for the petitioner, contends that in view of this resolution of the board authorising Sri C.K. Padmanabhan, both to sign and file the company petition, leave ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re concerned here with rule 21. The next decision is Nibro Ltd. v. National Insurance Co. Ltd. [1991] 70 Comp. Cas. 388 (Delhi) in which a suit was filed by a director without the necessary resolution in that behalf by the board. The contention of the company was that under Order 29, rule 1 of the Civil Procedure Code, in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any other director or other principal officer of the corporation who is able to depose to the facts of the case. The Delhi High Court rejected the contention of the company and held that the suit is not maintainable under section 291 of the Act read with sections 14, 26 and 28 and Schedule I, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent-company that there are arrears of Rs. 2,51,677 in respect of royalty payable up to January 31, 1985, which was then the accounting year of the company. The respondent also assured the petitioner in exhibit A-4 (exhibit B-9) that it will positively clear the dues of Rs. 2,61,677 during the current year of operation, i.e. , 1987-88. It paid Rs. 10,000 in March, 1987. No doubt, in respect of royalty due for the period subsequent to February 1, 1985, there were disputes between the petitioner and the respondent which were referred to the arbitrator. The arbitrator gave the award, exhibit A-12, on March 9, 1991, for Rs. 3,20,000 to be paid in eight equal quarterly instalments of Rs. 40,000 from April, 1991, to March, 1993. In the award t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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