2008 (5) TMI 400

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....he petitioning creditor in partnership with the petitioning creditor. After the death of the petitioning creditor's father, the partnership business has been continued by the petitioning creditor as the sole proprietor, under the same business name. 3. The partnership firm M/s. T. Sarkar, of which the petitioning creditor was a partner, along with his father, since deceased, was appointed marketing and publicity agent of the company. 4. Pursuant to the aforesaid agreement, whereby the firm was appointed advertising and publicity agent of the company, the firm rendered various advertising, marketing and publicity services to the company. 5. The services alleged to have been rendered by the firm to the company, included the booking o....

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....2003, as such no part of the claim of the firm is barred by limitation. 11. A statutory notice dated 21-6-2006, of winding up of the company duly served to the company on behalf of the firm, under section 434 of the Companies Act, 1956. The company neither replied to the notice of winding up nor paid the outstanding dues of the firm. 12. On behalf of the company, the locus standi of the petitioning creditor to file the winding up application has been questioned, on the ground that the transactions were with the partnership firm and not with the propri-etorship concern of the petitioning creditor. It is urged that the proprietor-ship and the partnership firm are distinct from each other. 13. The submission of the company with regard....

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....n the death of the father, there was dissolution of the partnership firm. The realizable dues constitute, the assets of the partnership firm, which are liable to be distributed amongst the partners and/or their respective heirs upon dissolution. 19. The petitioning creditor was himself a partner of the firm. The petitioning creditor was also heir and legal representative of the deceased partner, his father, who was the only partner other than the petitioning creditor. It is difficult to hold that a son and legal heir of a deceased partner, who was the only other partner of the firm would lack locus standi to pursue a debt due to the firm. 20. The application for winding up has been contested by the company not only on the ground of wa....