A winding-up order should not be made on the ground that the substratum of the company is gone if the company has sufficient funds to meet the claims of its creditors and the compensation for the acquisition of its assets is yet to be settled.

( 1 ) THIS appeal has taken an inordinately long time and that has been because the facts are in such a confused state that the learned counsel for both parties found considerable difficulty in getting out of them what they required for their respective purposes. It must also be said that the carriage of the proceedings before the learned Judge below was slovenly to a degree on the part of both parties. They did not seem to have considered it necessary to examine what their opponent was saying, nor to apply their minds to deciding what facts they had themselves to prove in order to obtain an order in their favour.

( 2 ) THE appellant is a public Limited Company which was formed for the purpose of constructing and maintaining a Railway, operating between the Station of Bukhtiarpur on the East Indian Railway and the town of Behar, There appears to have been an agreement between the promoters and certain local authorities which entitled those authorities to take over the Railway in certain circumstances. In pursuance of that agreement, the Company appears to have established a Railway running between Bukhtiarpur and Rajgir-kund which was a distance of about 30 miles. The line was connected with the East Indian Railway and naturally some mutual adjustments between the appellant Railway and the East Indian Railway became necessary. It is stated in the petition that there was interchange of coaching and goods traffic of every description between the two Railways and the East Indian Railway afforded to the Light Railway joint station facilities as also the right of conveyance over Its lines of materials required by the Light Railway for its own purposes.

( 3 ) THE case of respondent No. 1, the Union of India who really represent the East Indian Railway, is that as a result of the interchange of coaching and goods traffic between the East Indian Railway and the appellant Railway, a large sum came to be due from the latter by 1950 and on June 6 of that year, a notice of demand was served on the Light Railway, claiming payment of a sum of Rs. 5,22,313-12-6. That amount was made up of the alleged dues of the East Indian Railway under certain traffic bills and a variety of bills of other descriptions. No payment was made in compliance with the notice but a reply was sent on June 10, 1950, in which it was stated that the company was not liable for the whole of the demand in any event, inasmuch as till a certain date, the management had been in the hands of Martin and Company. Who it was, who was making the statement is, by no means, clear, since formally at least, it was the Railway itself which was writing and the language used in the letter "prior to our taking over charge from Martins" which suggests that the Railway was taking over charge from itself is plainly meaningless. Be that as it may, it was further stated in the course of the reply that if the District Board of Patna had taken over the Railway, the East Indian Railway should look to the District Board of Patna for payment, inasmuch as the Railway could have been taken over only as a going concern, comprising assets as well as liabilities. The only other statement contained in the reply to which it is necessary to refer is that the company was not in a position to accept the entire amount claimed "off hand", inasmuch its Accounts Section would have to check the same and make a report to it as regards its liability for payment.

( 4 ) I should state here that although the company's reply of the June 10 purports to be a reply to the East Indian Railway's letter of the 6th June, the reference to the acquisition of the Railway by the District Board is extraneous to the latter and no mention thereof can be found in it. It was however explained to us by Mr. Bose who appears on behalf of the appellant that the matter of acquisition must have cropped up and must have been discussed between the representatives of the Light Railway and the Law Officer of the East I