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TMI Blog1998 (8) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... his name in the place of Vikas Trust as the petitioner on the ground that he was the sole beneficiary in the Trust and since he had attained majority on 2-6-1988, as per the terms of the deed, Vikas Trust stood dissolved and the property had vested in him, this Court allowed the application in the absence of opposition by the trustees and observed that the objection of the respondent/company regarding the maintainability of the petition on the ground of non-joinder of the other trustees at the time of institution of the petition can be gone into at the hearing of the petition. Thus the name of Vikas Jalan has been substituted in the place of Vikas Trust as the petitioner. 3. The respondent/company through its counter has denied the claim of the petitioner. O.P. Jalan and R.K. Jalan are the sons of S.K. Jalan. They constituted a joint Hindu family with two more sons of S.K. Jalan. The petitioner is the son of O.P. Jalan. This joint Hindu family had 2 /3rd share in Deccan Enterprises (P.) Ltd. ('Deccan'). Deccan Polymer Ltd. ('Polymer'), respondent/company Nucon Industries (P.) Ltd. ('Nucon') and 20 per cent equity/stroke in Amintit Rubber Industries Ltd. ('ARIL'). This joint Hindu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves and the financial condition of Nucon is not at all alarming. It is making profits. 4. On 25-2-1994 by a separate order, the Company Petition was admitted. It was observed that if during the enquiry it was found that the petitioner is liable to pay Rs. 2,09,052.71 to the respondent as also Rs. 2,68,000 to the sister firm that is SCC, it would be a valid and substantial defence applicable to the respondent/Nucon to oppose the winding up, but that cannot be decided unless the parties adduce evidence before the Court. The order admitting the application dated 25-2-1994 was challenged in appeal OSA 35/1994. The appellate Court stayed only passing of the final order. The evidence of Vikas Jalan was recorded on 4-1-1995 and 5-1-1995 while the evidence of R.N. Jalan, Managing Director of the respondent/Nucon was recorded in parts on 8-3-1995, 15-3-1995, 25-7-1995,28-7-1995 and 11-8-1995. The appellate Court in OSA 35/1994 ordered that the company Court may proceed with the hearing of the case and should deliver the judgment but directed that whatever order is passed should not be implemented. The respondent/company filed an application CA 224/1996 for staying the proceedings or in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of the affairs of all the companies and the firm SCC, and used to make entries in the books of account of and on as desired by him and he was also responsible for the losses caused to the companies and, therefore, until the accounts are finalised, it cannot be said that Vikas Trust is entitled for any amount from the respondent/Nucon. It has also been contended that Vikas Trust had actually no funds to advance to the respondent/Nucon because there is no evidence on record that Vikas Trust had sufficient funds to make the security deposit of Rs. 6 lakhs on 12-10-1981. It has also been contended that Vikas Trust was liable to pay Rs. 2,09,052.71 to the respondent/ Nucon and Rs. 2,99,359.85 to SCC. Similarly Subhkaran Omprakash, a joint Hindu family of which the applicant is a member, is indebted to SCC in the sum of Rs. 3,02,001.15 and these amounts are liable to be adjusted against the alleged deposit of Rs. 6 lakhs. Under these circumstances, a bona fide case has been set up by the respondent/Nucon and, therefore, the application for winding up the company cannot be admitted. It has further been contended by the learned counsel of the respondent/Nucon that the application is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 992, the deposit received from Vikas Trust shows a credit balance of Rs. 2,04,997.69 in the books of the respondent/Nucon. It is pertinent to note that in the counter as also in the additional counter, it has not been alleged that Vikas Trust had no capacity to pay the amount of Rs. 6 lakhs to the respondent/Nucon on 12-10-1981. Therefore, no amount of evidence can be looked into regard-ing the alleged incapacity of Vikas Trust to pay Rs. 6 lakhs to the respondent/Nucon on 12-10-1981. 10. As noted above, the respondent/company in Para 4(w) of the counter has specifically admitted that the amount of Rs. 6 lakhs has been depos- ited by Vikas Trust with the respondent/Nucon and this amount carried interest at the rate of 10 per cent per annum. This clinches the issue. Therefore, it does not lie in the mouth of the respondent/company now to urge that Vikas Trust had no funds to make the payment on 12-10-1981, or the amount was not deposited by Vikas Trust with Nucon. 11. As noted above, from the evidence of Vikas Jalan, P.W. 1, and R.N. Jalan, R.W. 1, it is established that Vikas Trust was created by C.P. Modi, the maternal grandfather of Vikas Jalan and his sister Kavita Jalan and, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent/Nucon has not pleaded what is the actual amount of the alleged loss to be recovered from Vikas Trust and secondly there is also no material on record that a suit has been filed against Vikas Trust for the recovery of that amount within limitation. Therefore, it can be safely concluded that the alleged unascertained loss is barred by limitation. Under these circumstances, even if it assumed for the sake of arguments that the respondent/company had a right to set off, the right is extin- guished with the lapse of time. Similarly, the alleged claim of Rs. 2,99,3 59.85 of SCC against Vikas Trust appears to be barred by limitation, because, on the own showing of the respondent/company, this amount was due as on 24-10-1984 and no suit for recovery of the same has been filed. Therefore, it cannot be said that the respondent/company has got a bona fide and/ or probable defence to make, because, even if the applicant is directed to go to the Civil Court, the respondent/Nucon shall not be able to claim set off for the aforesaid two reasons. Similarly, SCC shall not be able to claim set off because the alleged debt does not appear to be legally recoverable now. It is also not out of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the living joint promisees must be joined in a suit to enforce a debt due to them. Because Kavita Jalan has not been made a party either as the applicant or as the respondent, the application for winding up deserves to be dismissed, because, Vikas Jalan is alone not entitled to take action against the respondent/company on the strength of the claim of Rs. 6 lakh for which amount Kavita Jalan was also entitled to. 19. True that all the trustees must join in execution of the trust. In other words, in case of co-trustees, the office being joint, all the trustees should jointly take action against any person in relation to the trust property and only one trustee is not empowered to execute the trust unless the instrument of the trust so provides. But the defect is of a formal nature and omission to include other trustee amounts only to irregularity. It has been held in the case of S.V. Daniels v. Gregory Warden Friendly Trust AIR 1959 All. 579, that the defect can be allowed to be removed at any stage of the proceedings. Where co-trustee has not been impleaded as a party to the proceedings, even if the suit is not initially entertainable by the Court, it has got jurisdiction to allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of half share to Kavita Jalan or in the alternative after giving him an opportunity to make an application for addition of necessary parties, the question of maintainability of the petition on account of non-joinder of necessary and proper parties can be decided, particularly when this question does not appear to be necessarily decided at the time of deciding the preliminary issue as the appellate Court in the impugned order dated 29-10-1996 in OSA 15/1996 has clearly ordered that the Company Court shall decide whether the debt is genuine or not and if the debt is found to be genuine one, further proceedings of winding up shall be gone through and the matter be decided according to law. Therefore, the other matter that is regarding the maintainability is to be decided in accordance with law after the publication is made as I have found that the debt is genuine. 23. In the result, I order that the making of this order of the admission of the petition should be advertised in one issue of Deccan Chronicle an English daily, and one issue of Eenadu, a Telugu daily as per rules and proof of publication should be filed by the next date. After the judgment is pronounced and signed, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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