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2001 Supreme(Cal) 560
High Court Of Calcutta
Y. R. MEENA, ARUN KUMAR MITRA
ASHIT ROY - Appellant
Versus
PEERLESS TEA AND INDUSTRIES LTD. - Respondent
C. P. 321 Of 1987
Decided On : 08/31/2001
Kar, MITTER, MUKHERJEE
Disputes related to money claims, counterclaims, and disputed facts cannot be decided solely based on affidavits without taking evidence in court and proving the facts in a court of law.
Headnote:
COMPANY - WINDING UP - LOAN - INTEREST - APPOINTMENT OF JOINT SPECIAL OFFICERS - DUTY OF JOINT SPECIAL OFFICERS - ACCOUNTS - DISPUTE - CIVIL COURT.
Fact of the Case:
A winding-up petition was filed for non-payment of a loan by the company to the petitioner. Joint special officers were appointed to run the tea estate of the company. The joint special officers took a loan from the petitioner for running the tea estate. The company challenged the accounts submitted by the joint special officers. The petitioner did not accept the amount offered by the company as per the court order. The company also did not accept the accounts submitted by the joint special officers.
Finding of the Court:
The court held that the dispute between the parties could only be settled through evidence before the civil court. The court dismissed all three appeals and vacated all interim orders. The parties were at liberty to move the appropriate forum in accordance with law.
Issues: 1. Whether the joint special officers were authorized to take a loan from the petitioner. 2. Whether the accounts submitted by the joint special officers were accurate. 3. Whether the petitioner was entitled to interest on the loan.
Ratio Decidendi: The court held that the dispute between the parties could only be settled through evidence before the civil court. The court dismissed all three appeals and vacated all interim orders. The parties were at liberty to move the appropriate forum in accordance with law.
Final Decision: The court dismissed all three appeals and vacated all interim orders. The parties were at liberty to move the appropriate forum in accordance with law.
( 1 ) THESE three appeals are interconnected, therefore we heard and disposed of them by this common order. The common basic facts touching the three appeals are inter alia as follows : these three appeals which have been heard analogously centre round the resultant effect of a winding up petition being C. P. No. 321 of 1987.
( 2 ) ONE Ashit Roy, residing at Millanpally, P. O. Siliguri, District Darjeeling filed an application under Sections 433, 434 and 439 of the Companies Act, 1956, being Company Petition No. 321 of 1987.
( 3 ) IN the said petition it was inter alia stated that M/s. Peerless Tea and Industries Ltd. is a public company limited by shares and was incorporated under the provision of the Companies Act, 1956, in or about 1967. The registered office of the company at 3/1, Mango Lane, Calcutta, and the nominal shareholders' capital is Rs. 7 lakhs and the paid up capital is Rs. 5,35,670. It was averred in the said Company Petition No. 321 of 1987 that between November 30, 1984, and November 30, 1985, at the request of the company, the said Shri Ashit Roy from time to time lent and advanced various sums of money aggregating to a sum of Rs. 66,105 repayable on demand with interest thereon at 18 per cent. per annum.
( 4 ) THE said loans were advanced by Sri Ashit Roy to the company for the purpose of the company's business and was a commercial loan. It was also averred in the said petition in order to secure due repayment and/or as security therefor executed four several demand promissory notes dated November 30, 1984, January 18, 1985, February 22, 1985 and November 30, 1985, executed by the manager and/or director for and on behalf of the said company in favour of the petitioner, and the aggregate sum of Rs. 66,105 was covered in the said four promissory notes.
( 5 ) IT was further stated in the said company petition that the company has failed and neglected to pay the said sum of Rs. 66,105 till date and the petitioner claimed Rs. 88,240. 35 from the company being the amount Rs. 66,105 as principal sum and Rs. 22,135. 35 as interest at 18 per cent.
( 6 ) IT was also averred by Shri Ashit Roy that statutory notice of demand was served on the company and after a lapse of period of 21 days of the statutory notice when the company could not pay the amount, according to the petitioner because it was a commercially insolvent company being unable to pay the debts. Accordingly, Shri Roy the petitioner in the company petition prayed for winding up of M/s. Peerless Tea and Industries Ltd. under the provisions of the Companies Act, 1956.
( 7 ) IN the said company petition on interlocutory applications from time to time, interim orders were passed. On June 4, 1987, Mrs. Manjula Bose J. passed an order the text of which is inter alia as follows :"mr. Sunit Kr. Bhattacharya and Mrs. Chandry Alam, advocates are appointed joint special officer in terms of prayers B and C to act jointly and/or severally at the discretion of the senior special officer will supervise the sale of the tea crops of Salim Hill Estate and maintain a separate account in respect of such sales of the tea crops. The senior special officer be paid 200 gms. and the junior special officer 150 gms. in the first instance. Their final remuneration will be settled later on. Liberty to serve the company both at the registered office also on the manager of Salim Hill Tea Estate, Karshiang. The officer-in-charge Karshiang Police Station is directed to render all assistance to the special officers for the purpose of giving effect to this order. "
( 8 ) ANOTHER interim order was passed by Mrs. Manjula Bose J. on August 27, 1987, and the gist of the said order is inter alia as follows :"it appears that although joint special officers have been appointed they are facing difficulties in running the tea garden for want of funds and as such it is prayed that suitable directions be given by court for arrangement of funds by way of loan from the petit
