Decided on April 20,1970

Bengal Linn (Industrial Furnace) Ltd. Appellant
R.G. Keshwani And Company Private Ltd. Respondents


S.C. Ghose, J. - (1.) This is an application under Sec. 34 of the Indian Arbitration Act for the stay of the Suit No. 2595 of 1968 and all proceedings relating thereto and arising thereunder. The suit was filed by the Plaintiff who is the Respondent in the present application for the recovery of a sum of Rs. 73,590 -79 P. on account of balance of commissions for the years 1966 and 1967 payable - by the Defendant to the Plaintiff, alternatively, for an enquiry into compensation as to such sum payable by the Defendant to the Plaintiff and a decree for such sum as would be found due upon such enquiry and for other relief 's.
(2.) The Defendant is a company incorporated under the Companies Act, 1956, as a public limited company. Since the incorporation of the Defendant company the Plaintiff had been acting as the sole selling agent of the Defendant's products on the terms and conditions contained in the agreement dated March 30, 1966. The Plaintiff from time to time sent to the Defendant its statement in respect of the commission earned by him in the year 1966. For the years 1966 and 1967 a sum of Rs. 73,590 -79 P. became due and payable by the Defendant to the Plaintiff on account of commission due upto the month of October 1967, after adjusting the payments made by the Defendant from time to time. After serving notice under Sec. 434 of the Companies Act, 1956, the Plaintiff filed an application for compulsory winding up of the Defendant company under the provisions of the Indian Companies Act. The Defendant made an application for stay of the said winding up proceedings. In the said application of the Defendant for stay of the winding up petition an -order was made by the Company Court on June 17, 1968, inter alia, to the following effect, to wit: Upon the applicant furnishing security to the satisfaction' of the Registrar, Original Side, for a sum of Rs. 70,000 -00 within 6 weeks from the date of the order and upon E.G. Stief, a Director of the applicant, undertaking to this Court through counsel not to deal with or dispose of or encumber immovable property of the applicant or its fixed assets except strictly in the usual course of business, the Company Petition No. 42 of 1968 and all proceedings thereunder should remain permanently stayed and the petitioning creditor would be at liberty to institute a suit for recovery of its dues if any.
(3.) In pursuance of the said order the security for the said sum of Rs, 70,000 was duly furnished by the Defendant and the application for winding up, namely, the Company Petition No. 42 of 1968, was permanently stayed. Thereafter, the Plaintiff filed the above suit mentioned above for recovery of the said sum and for relief 's mentioned in the plaint.;

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