TMI Blog1994 (7) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... e the said amount is more than ₹ 500/-, the Respondent Company must be deemed to be not in a position to pay their debts. 2. The Petitioners claim that between the period 14-8-1990 and 17-11-1990 the Respondent Company was supplied with goods worth ₹ 1,21,640.75 P. under its bills which are enumerated in Exhibit A annexed to the Company Petition. The Petitioners further claim that by letters which are at Exhibits B and C , the Petitioners demanded the amounts due to them from the Respondent Company. As the Respondent Company did not respond to the said communications, statutory notice dated 3-8-1992 as required under section 434 of the Companies Act was sent to the registered office of the Respondent-Company and to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Company did not produce any document in support of their contention for inspection of the Petitioners. 4. Apart from the said defence, the Respondent Company has raised a legal defence, and it is contended by them that the Petitioners are a partnership firm and the Petitioners being not a registered partnership firm, their remedy to recover the dues from third party by way of a suit is barred in view of section 69 of the Partnership Act and therefore when the remedy of the Petitioners is barred for recovery of the said amount due from the Respondent Company, there does not exist the debt which is recoverable by the Petitioners, and therefore, the presumption which would arise as a result of the notice under section 434 of the Companies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n English while the other part of the entire receipt is in vernacular. It is tried to be contended on behalf of the Petitioners across the Bar that Maganlal Jivraj and Co. are the chartered accountants of the Petitioners. Unfortunately for the Petitioners there is nothing in the affidavits which are produced in support of their petition explaining the said receipt in the name of Maganlal Jivraj and Co., Chartered Accountants, and that they have received the said receipt in respect of filing of the application of the present Petitioners for registration of the firm. In the absence of any such statement, there is no link established to show that the said receipt is in respect of the application of the Petitioners' firm. In Exhibit 'B& ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent Company has not paid the debt of the Petitioners in spite of the notice under section 434 of the Companies Act and therefore the Respondent Company is unable to pay its debts, the Petitioners must establish that the debt alleged against the Respondent Company is the debt which is legally recoverable. Even in respect of the debts which are barred by limitations if the petition for winding up is filed the debt being not recoverable due to bar of limitation, the proceedings for winding up of a company on the basis of such debt is not maintainable. Similar would be the position in respect of a debt which is barred from being recovered or being recoverable due to bar of any other statute. An attempt was made to contend, relying on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petition for winding up under the Insolvency Act or under section 434 of the Companies Act. Reliance is also tried to be placed on a decision reported in AIR 1975 Ker 144, Kerala Arecanut Stores vs. M/s. Ramkishore and Sons, wherein it was held that the right of action available to an indorsee of a cheque who comes to hold the cheque in due course is based upon conferment on him by the statutory provisions contained in the Negotiable Instruments Act the right to sue the maker of the cheque and also the indorser, and that the right sought to be enforced does not arise from a contract and therefore the bar under section 69(2) will not operate in such a case. The case, it appears, which was before the learned Judges of the Kerala High Court w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e themselves come with the case not based on the cheque alone but they have come with a case of a contractual liability arising out of an agreement of sale and purchase between the parties. The fact of bouncing of the cheque is stated only by way of evidence to show that the said amount was accepted by the Respondent Company as payable to the petitioners at some point of time when the cheque was tendered. In view of this, the ratio of the decisions quoted above has no application to the facts of the present case. 5. On the facts as have come on record, the alleged debt of the Respondent Company is not recoverable prima facie from the Respondent Company in view of the bar of section 69 of the Partnership Act, and therefore cannot be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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