A judgment debt is prima facie evidence of a debt and carries great weight even in a bankruptcy Court or winding up proceedings. However, the Court can enquire into the validity of a judgment debt based on allegations of fraud or collusion, but only if a sufficient case is made out with proper particulars and grounds.

P. B. MUKHARJI, J.

( 1 ) THIS is an application by the judgment-creditor for the winding up of the company called Ko-Ku-La Ltd. The grounds on which the petition is being prosecuted by the judgment-creditor are first, that the company is unable to pay its debts and secondly, that the statutory notice of demand was given to the company as required by S. 163, Companies Act. The statutory demand is pleaded in para. 9 of the petition and a copy of the demand is annexed to the petition as Ex. B and it is pleaded that it was sent by registered post.

( 2 ) THE facts briefly are as follows: The petitioner instituted a title suit in 1947 in the Subordinate Judge's Court at Asansol claiming possession of certain lands which the company had contracted to purchase from her and Rs. 10,000/- for breach of contract, Rs. 4,000/- for price of cattle and Rs. 1,000/- for deterioration of the cattle and Rs. 2,000/- as the value of the produce of the arable lands and Rs. 1,000/- as damages for demolition of certain buildings. There was a written statement by the defendant company, but at the time of the hearing it did not appear and on 26-5-1949, a decree was passed in that suit in favour of the petitioner against the company for the sum of Rs. 18,000/- and for Rs. 3419/3/3 for costs, aggregating to Rs. 21,419/3/3.

( 3 ) THIS decree of 26-5-1949 still remains unsatisfied. Certain steps were taken in execution of this decree. In execution the petitioner caused certain lands belonging to the company to be attached. The lands were attached and sold by the executing Court by public auction and the petitioner was the highest bidder purchasing the same for Rs. 9,000/ -. The executing Court allowed the purchase money to be set off in part satisfaction of that decree. The sale was duly confirmed and a sale certificate has since been issued.

( 4 ) IT is now said that in spite of demand the company did not pay the balance of that decree which including interest calculated upto 29-8-1951, amounted to Rs. 11,976/9/6, for which sum the statutory notice was given on that date, i. e. 29-8-1951. In that notice given by the petitioner herself the demand is clearly made for the sum of Rs. 11,976/9/6 being the balance of the decretal amount in Title Suit No. 33 of 1947 of the Court of the Subordinate Judge, Asansol and the company was also notified that on failing to pay this amount within three weeks, the petitioner will consider the company to be unable to pay its debts.

( 5 ) ON these allegations the petition was presented by the judgment-creditor on 20-11-1951.

( 6 ) IN the affidavit-in-opposition filed on behalf of the company by Sunil Krishna Roy Chowdhury he described himself to bs at present the Manager in the "new Selected Dhori Colliery". This affidavit-in-opposition was filed on 16-2-1952. According to this deponent he was the Managing Director of the company at the relative period. His whole case on behalf of the company is that the petitioner would not have got a decree if he had not tendered his resignation and left the company when the said decree was obtained. Although he was not in the company when, according to him the ex parte decree was obtained, he is not slow to make the vaguest allegation that the decree was falsely and fraudulently and/or in collusion or conspiracy obtained by the petitioner with some officers and employees of the company. No mention of any particular officer or employee is made to even remotely suggest by way of particulars of bona fides regarding the allegation that is made against the petitioning creditor who happens to be also the judgment-creditor, so that she is not even in a position to meet such allegation. The execution is admitted by him. But that also is charged as being false and fraudulent. No particulars are given and no grounds are shown on which such allegations of fraud are made. It is admitted in the affidavit-in-opposition that execution was levied pursuant to the decree, that attachment was levied un

Click Here to Read the rest of this document