The Coimbatore Transport Ltd. vs The Governor-General in Council

Rajamannar, O.C.J.

This is an appeal from the order and judgment of Clark, J., in a petition filed by the Income Tax Officer, Special Circle, Coimbatore, to wind up

the appellant company viz., The Coimbatore Transport Ltd., a private Company registered under the Indian Companies Act. On an objection

taken by the appellant, the Governor-General in Council was substituted in the place of the Income Tax Officer as petitioner. The debts on which

the petition was founded were due in respect of Income Tax and excess profits tax for the year 1941-42 and 1942-43. With a penalty of Rs.

3,200 the total amount due exceeded Rs. 30,000. There appears to have been a slight reduction in the amount payable on account of a subsequent

decision of the Appellate Tribunal but it is not disputed that a very large sum is lawfully due and payable as and for the taxes above mentioned.

The only ground on which the petitioner sought a winding up order, at the trial, was that the company was unable to pay its debts (vide Section

162, Clause (v) of the Indian Companies Act). The learned Judge found that the company was unable to pay its debts and held that the petitioner

was entitled to a compulsory winding up order. He however directed the winding up order to be stayed for a period of one week. If during that

time security in the shape of Government paper for the amount of taxes due was deposited in Court, then the application was ordered to be

dismissed with no order as to costs. If such security was not supplied within the time fixed, then the winding up order was to stand. No such

security was furnished within the time allowed. The company appeals against this order.

It was contended by the learned advocate for the appellant that there was no sufficient allegation in the petition that the appellant was unable to

pay its debts and that in any case there was no proof that it was so unable. We agree with the learned Judge that there is no substance in this

objection. In the petition it was alleged that the company purported to have sold its buses on the 23rd March, 1946, for a sum of Rs. 1,71,000 but

this money was not utilised for payment of the arrears of the taxes. It was also stated that such of the properties as may be traced may not fetch

any appreciable sum: The company has been unable to pay the large amount due as taxes in spite of demands. In paragraph 12 of the petition

mention is made of the unsatisfactory financial position of the company. The fact that the company is disputing the quantum of the tax assessed

does not by itself prevent the Government from recovering the amount assessed and admit-tedly the company is not in a position to pay it. There

can be no doubt that the petition did allege the inability of the company to pay its. debts and the learned Judge was justified in finding that the

allegation had been proved. In Re Gold Hill Mines (1883) 23 Ch. D. 210, the only basis for the allegation that the company was unable to pay its

debts was an ordinary statutory affidavit. In P.R. Doraiswami Ayyar Vs. Coimbatore Easwara Sahaya Nidhi Ltd., , there was a vague statement

made in the petition but it was not sup-ported by figures or facts and the only fact relied on was the failure to comply with the statutory demand.

These decisions cannot have any application to the present case.

It was next contended by Dr. John, learned advocate for the appellant, that there was a dispute as to the assessments and where there is a

dispute and such dispute has not been finally determined, it is an abuse of the process of Court to resort to winding up proceedings and this Court

should not grant the prayer in such circumstances. It is said that as regards the assessment for the year 1941-42, the company intends to apply to

this Court to direct the Income Tax authority to refer the case u/s 66 of the Income Tax Act and that as regards the assessment for the year 1942-

43 there is an appeal pending before the Income Tax Tribunal. The learned advocate strongly relied on certain decisions in support of his

contention, but on an examination of the facts of the cases in which those decisions were given, it becomes apparent that the principle laid down in

them has no application whatever to the facts of the present case. In Satyarazu v. The Guntur Cotton, Jute and Paper Mills (1925) 47 M.L.J. 710 :

ILR 48 Mad, the appellant and two others applied for an order for winding up the respondent company. The appellant claimed to be a mort-gagee

for a considerable sum, but the company did not admit that the mortgage was binding on it. A suit had been filed on the mortgage in which the

validity of the mortgage was being contested. While the suit was pending, the application for winding up was made. There was no proof that the

company was insolvent. The learned Judges found that the petition was filed with the object of bringing pressure to bear upon the company in

order to make it pay cheaply and expedi-tiously a heavy debt which it desired to dispute in the Civil Courts. The learned Judges say:

The law is perfectly clear that petitions for winding up which are put in in order to obtain an unfair advantage over other creditors at a time when

the company is not known to be insolvent amount to an abuse of the process of the Court and should be dismissed.

They point out that there was no reason why the appellant, if the amount was due, should not get her remedy in the usual course by obtaining a

decree in the suit instituted by her. It was a case where the creditor, without resorting to the ordinary remedy of enforcing her claim in a Court of

law, was attempting to use the winding up provision to coerce the company to pay up disputed debt. In In re London and Paris Banking

Corporation4, a creditor of a company whose debt was disputed served a statutory notice and at the expiration of three weeks there-after filed a

petition to wind up the company. In the opinion of the'' Court, the circumstances showed that the object of the petition was not to obtain a winding

up order but to put pressure on the company. There was no evidence of the"" in-solvency of the company other than the non-compliance with the

notice. The petition was dismissed. The following passage from the judgment of Jessel, M.R., is informing:

...if the debt is bona fide contested, and there is no evidence other than non-compliance with the statutory notice to show that the company is

insolvent, and the company denies its insolvency (as this company does) I ought to dismiss the petition. I must say, however, that the facts of the

case go far beyond what I have stated, and are such as to convince me that this petition has not been presented bonafide that is, not with the view

of obtaining a winding up order but with the object of extorting from the company a larger sum than they thought was fairly due, under pressure of

a threat to present the winding up petition.

To the same effect are the observations of Vaughan Williams, J., in In re A Company1,

In my judgment, if I am satisfied that a petition is not presented in good faith and for the legitimate purpose of obtaining a winding up order, but for

other purposes, such as putting pressure on the company, I ought to stop it if its continuance is likely to cause damage to the company.

In Tulsidas Lallubhai v. The Bharat Khand Cotton Mill Company, Ltd. ILR (1915) Bom. 47, the petitione who was an assignee of certain debts

due by the defendant company to. its late Secretary and Manager, demanded payment from the company; but the company refused to pay on the

ground that it believed the claim was fraudulent and unsus-tainable. The petitioner thereupon applied to the Court to compulsorily wind up the

affairs of the company. It was not shown that the company was unable to pay its debts in full. The application was rejected because it was found

that the petitioner''s object was to bring the pressure of insolvency proceedings to bear upon the company in order to make it pay cheaply and

expeditiously a heavy debt which it desired to dispute in the Civil Courts. In the present case the facts are entirely different. According to the law,

and this is not disputed by Dr. John, the Income Tax authorities are entitled to recover the amount assessed by them though an appeal or reference

is pending in respect of the assessment and the amount could be recovered by coercive process. This is not therefore a case where the petitioner

had to establish his claim in a Court of law before he could proceed to recover the amount due. This is also not a case in which the only ground of

insolvency alleged is non-compliance with the statutory notice u/s 163(1) of the Act. We have found that it has been established that the company

is unable to pay its debts. It is impossible to characterise the action of the petitioner in filing an application for winding up as an abuse of the

process of Court.

Finally Dr. John suggested that in view of the proceedings pending or which he proposes to take in respect of the assessments the petition ought

to have been adjourned till a final determination of the validity of assessments. He relied strongly on Bowes v. The Hope Life Insurance and

Guarantee Company (1865) 11 E.R. 1383 : 11 H.L.C.389, in which the petition for winding up was ordered to stand over on the company

undertaking to file a bill to impeach the judgment on which the petition was based. The facts of the case however reveal that this procedure was

adopted because of certain special circum-stances which are absent in the present case. Their Lordships were prima facie not satisfied with the

genuineness or validity of the debt on which the petition for winding up was based. Lord Cranworth said:

But here I must confess I cannot say that this debt is so clearly made out to my mind as being a valid debt at law and in equity that I think the Court

was bound to direct the winding up, if there was any mode by which the validity of the debt could be better established before that order was

made.

Lord Kingsdown said as follows:

Everybody must feel that (as it is here stated) that this is a case in which there is the gravest possible doubt as to the genuineness and fairness of

this transaction. It is clear that it must be investi-gated, and thoroughly investigated.

In In re Amalgamated Properties of Rodesia (1913) Lim 4, the facts were as follows: An action by company A against company G was dismissed

with'' costs, and the costs payable by company A were taxed at a sum of over � 65,000. Company G served the company A with a statutory

demand for payment of the amount and on non-compliance with the demand filed a petition for winding up of company A. In the meantime

company A lodged an appeal from the decision at the trial. Sargant, J., held that the appeal was not a defence to the petition but that a winding up

order must be made which must lie in the office for a limited time, and that, if within that time company A gave security to the registrar''s satis-

faction for the amount of the judgment debt, the petition must be dismissed. It may be seen that this order is similar to the order made by Clark, J.

There was an appeal from the judgment of Sargant, J., but the appeal was not heard as by consent an arrangement suggested by the Court was

agreed to by the parties, viz., company A was given the alternative of giving to the company G within a limited period a security on its assets. Dr.

John suggested that the latter procedure might be adopted and that the company may be permitted to give security on its assets. This suggestion

was not accepted by the respondent because according to him the assets were nil and the appellant''s counsel was not in a position to deny this

fact. We indicated that if the company was willing to furnish security to the satisfaction of the Court for the amount of the taxes due we might be

disposed even now to postpone the operation of the winding up order till the validity of the assessments was finally determined. But Dr. John

intimated to us that the company found it impossible to furnish any such security. We do not find any ground on which we could postpone the

winding up proceedings.

We agree with the learned Judge in the order which he made and the appeal is dismissed with costs.

Dr. John expressed that the company apprehended that the proceedings being taken by the company to challenge the validity of its assessments

might not be conducted properly unless they were done with the assistance of the company''s officers. The respondent''s advocate fairly conceded

that he could have no objection to the Official Liquidator permitting the company''s officers to assist him in the prosecution of the proceedings

which might be taken in respect of the assessments.