TMI Blog2004 (1) TMI 376X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant-company is creditor as well as guarantor of the company proposed to be wound up. It is, therefore, asserted that the applicant-company has vital interest in the proceedings and any order passed in these proceedings may prejudice the applicant. Besides, it is asserted that the present company petition is not a bona fide petition for the reasons set out in the Affidavit. On the above contentions, it is prayed that the applicant be permitted to intervene in the Company Petition No. 158 of 2003 and file pleadings and make oral arguments at the time of hearing at every stage of the petition. 2. No reply has been filed opposing this application. In that sense, the averments regarding facts so as to justify the intervention of the applicant, have gone uncontroverted. However Mr. Sathe, learned counsel for the petitioner has opposed this application. According to him, the applicant has no locus to pray that the applicant-company be permitted to intervene in the company petition. He submits that if at all the applicant-company is to be heard, that would be only at the stage of final hearing of the company petition and not at this stage : because, at this stage the court is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has discretion to allow interested persons to participate in the proceedings so as to oppose the admission of the petition. I have no hesitation in adopting the exposition as made in this decision. On the same lines, is the dictum in the case of Bharat Petroleum Corpn. Ltd. ( supra ) [unreported decision of this Court] where the question was whether the secured creditors could be heard at the stage of admission of the Company Petition and it has been held that even at the admission stage of the company petition, the secured creditors can be permitted to intervene and be heard. Understood thus, I find no substance in the objection taken on behalf of the petitioner-company regarding the maintainability of this application. 5. Accordingly, this application succeeds. The applicant-company is allowed to intervene in the Company Petition for filing pleadings and to make oral submissions at the time of admission of the Petition. It is made clear that the question whether the company petition, as filed, is bona fide or not will be considered at the stage of hearing on admission of the company petition and that aspect is left open. 6. No order as to costs. 7. This pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the Petitioner is plainly covered by the Joint Venture Agreement and the arbitration clause therein. Moreover, the amount in question has been expressly claimed by way of a counter claim in the arbitration proceedings between the Petitioner and the Intervenor Company. Besides, it is contended that under the joint venture agreements, the petitioner is liable to make good the loss suffered by the company to the extent of 50 per cent share and that obligation has not been discharged and so long as that obligation remains undischarged, the Petitioner is not competent to take recourse to the remedy under section 433 of the Act. It is asserted that the obligation of the Petitioner is far in excess of the amount claimed by the Petitioner. It is contended on behalf of the company as well as the Intervenor-company that the statutory notice issued by the Petitioner is a subterfuge to the main ground of seeking winding up on account of the loss of confidence between the Partners and such a ground cannot be said to comprehend the clause of just and equitable reason for invoking the discretionary jurisdiction of this Court of winding up of the company. It is also contended on behalf of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the Petitioner has conceded that the Petitioner is pressed only under section 433( e ) of the Act i.e., inability of the company to pay its debts. In that backdrop, I shall proceed to examine the matter. No doubt, the Petitioner had supplied Grandparent birds to the company for which the Petitioner was entitled to recover the amounts therefor from the company, being outstanding dues. The fact however remains that the Petitioner is a Joint Venture Partner along with the Intervenor-company. In that sense, the Petitioner has dual relationship with the company proposed to be wound up. The Petitioner is not only the creditor of the company, but also its shareholder on equal basis with the Intervenor Company. 11. Counsel for the company, in my view, has rightly relied on the decision of the Apex Court in the case of New Horizons Ltd. v. Union of India [1995] 1 SCC 478. In paragraphs 27 to 37 of this decision, the Court has considered the principle regarding lifting of corporate veil and, in paragraph 38, in the context of the fact situation of that case, it is observed that, the contribu tion towards the resources of Joint Venture was in the nature of a Partnership be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of trade, no action can be brought by one house against the other house upon any transaction between them while such an individual was a partner. On that principle, the Court went on to observe that one partner cannot sue for money lent by him to a firm of which he is a member, as the advance would be but an item in the partnership account. Reliance is also placed on the decision in the case of Lachmichand Jagarnath Firm v. Jagoo Lal Jasarag Firm AIR 1937 Pat. 55 where it has been observed that when the relationship between the parties was one of partners and in absence of a prayer for dissolution of the partnership the, Suit, as framed, was not maintainable. The Court then adverted to the settled legal position that it is not an invariable rule that a partner is not entitled to maintain a suit for accounts against a co-partner without seeking dissolution of the partnership; but it has been pointed out in the decision in 54 Madras 671 that before such a suit can be instituted, a special ground must be made out; that is to say that ordinarily a partner is not entitled to partial accounts, but if he wants an account of the partnership dealings, he must sue for a general account ..... X X X X Extracts X X X X X X X X Extracts X X X X
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