AI Drafter 
TaxTMI 
TaxTMI 
1964 (6) TMI 42
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.... company, through its directors, verbally agreed to pay interest at 9 per cent, per annum. A statutory notice for Rs. 48,14302 nP. was served upon the company but the company failed and neglected to pay the sum. It is alleged that the amount now due to the petitioner is Rs. 48,00702 nP. The petition is verified by one Jogesh Chandra Dutt., who is a director of the petitioner-company. The same person is also one of the directors of the company. Thus, it is clear that the directors who are controlling the petitioner-company are also controlling the company which is sought to be wound up. The other person who is also a director both of the petitioner-company and of the company is one A. R. Mukherjee, who apart from being a director of both the petitioner and the company, is also a director of another company which claims to be a creditor of the company in the sum of Rs. 2,42,500. This sum, it is alleged, is due to a company known as A. R. Limited of which the said A. R. Mukherjee is aLso a director. In effect, therefore, this application is the result of a concert between the same group of persons, who are controlling the affairs of the said two companies claiming to be creditors of t....
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....y was unable to pay the same and in order to help it, the petitioner took shares of the value of Rs. 1,90,000 and thereby reduced the debt to a sum of Rs. 50,000. It is again curious that these facts have not been pleaded in the petition, nor is there anything in the petition to suggest that the petitioner had advanced a much larger sum, the greater part of which was adjusted by allotment of shares by the company to the petitioner Apart altogether from the question whether this court can in this application for winding up of the company, take notice of any alleged indebtedness in the said affidavit of Basanta Kumar Bose, it is to be seen that the case made by the petitioner in the petition is entirely different from what has been alleged by the company. Then again, in paragraph 5 of the affidavit of Basanta Kumar Bose, it has been alleged that almost all the payments were made by the petitioner to the company by cheques. Accounts for several years have been annexed to the affidavit of Basanta Kumar Bose. The first annexure is an account for 1947 and it appears from the account that excepting for two items all the entries are journal entries. This account is a copy of the ledger ....
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....s to bear interest at 6 per cent. It is alleged that pursuant to the two agreements, the objector went into possession of the company's colliery and has advanced various sums of money to carry on the colliery of the company and the total amount so advanced is Rs. 98,000. It is further alleged that on November 8, 1961, one D. P. Swaika, a nominee of the objector, was co-opted in the board of the petitioner, in order to protect the interests of the objector. It is there after alleged that disputes arose between the said Jogesh Chandra Datta and A. R. Mukherjee on the one hand representing the company and the objector as the former wanted further advances which the latter declined to make until the permission of the State Government was obtained to the amalgamation. An application was jointly forwarded to the State Government for that purpose and it appears that the same is still pending. It is contended on behalf of the objector by Mr. R. Chaudhuri that having failed to obtain loans from the objector the said two directors of the company have been trying to oust the objector from the possession of the company's colliery and having failed to gain that object, they have caused the peti....
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....ls in other affidavits. In support of this contention Mr. Chaudhuri first of all referred to a decision in In re Wear Engine Works Co. [1875] 10 Ch. App. 188. In this case James L.J. held that a winding up petition must allege facts which justify a winding up order. If there is any slip in the statements in the petition, amendment may be allowed. But, subject to that power, there must be sufficient evidence in the petition itself which would justify a winding up order being made. Mr. Lahiri appearing for the petitioner asked for leave to file a further affidavit in support of the indebtedness of the company to the petitioner. He submitted that grounds for winding up are already there in the petition and all that he wanted was a further affidavit to produce further and better evidence of indebtedness of the company to the petitioner. Mr. Lahiri submitted that he should be allowed an opportunity to do so because the company is in involved circumstances and it has stopped carrying on its business. Further, there were a large number of creditors whose demands the company is not in a position to meet. I cannot accept the submissions of Mr. Lahiri that he should be allow ed to file....
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....act that the same group of persons are really controlling both the petitioner and also the company and one of them, besides being a director of the petitioner and the company, is also a director of another company which claims to be a creditor for a large sum of money. The petitioner and the company appear to be carrying on business at the same address. The company has readily obliged the petitioner by sending to it an acknowledgment of its liability and also an admission of its inability to pay debts. Indeed, it is difficult to resist the conclusion that the evidence of collusion in this case is overwhelming. If the machinery of winding up is sought to be set in motion for purposes other than to secure a winding up of the company, and if the real object is something other than winding up, and the claim for winding up is the ostensible but not the real object of the petition, this court will not lend its aid to the petitioning creditor by making an order for the winding up of the company. Apart from the fact that the ostensible object appears to be to wind up the company and the real object is something else, namely to compel the objector to vacate the company's assets, in- my o....