- (1.) THIS is a petition under Section 433 of the Indian Companies Act, I of 1956 (hereinafter referred to as the Act), filed by the Aluminium Corporation of India Ltd. (hereinafter referred to as the Corporation), for winding up the Lakshmi Ratan Cotton Mills Co., Ltd. (hereinafter referred to as the Company) in the circumstances detailed below.
(2.) THE Company is one of the Indus trial and business concerns controlled by the Guptas of Kanpur. The Corporation is controlled by another prominent group of industrial magnates of Kanpur, the Singhanias. It appears that the Gupta and the Singhania groups were at one time jointly running the company as well as the Corporation. They were also jointly controlling a firm known as Firm Behari Lal Ram Chand (referred to herein after as the firm) so much so that the accounts of these three concerns were mixed and open to each other as though the three concerns were one. But, subse quently, as a result of- differences be tween the two groups, they decided to. part company. Their interests were se parated under an award. The Corpora tion came to the share of the Singhanias exclusively. The Company and the Firm fell in the share of the Guptas. Ac counting between the Corporation and the other two concerns indicated that the Company and Messrs. Behari Lal Ram Chand had certainclaimagainst the Corporation which did not clear its ac counts. Consequently, two civil suits had to be filed at Kanpur. Suit No. 63 of 1949 was filed by the Company against the Corporation and Suit No. 65 of 1949 was filed by the Firm against the Corpo- ' ration, claiming amounts due to them. The suit filed by the Company was de creed, after going into accounts, for a sum of Rs. 2, 82, 734/11/3 with proportion ate costs and pendente lite interest at 3 per cent per annum. Among the pleas taken by the Cor poration in the suit decreed against it was that the claim was barred by time. The Company relied upon an acknow ledgment, contained in a letter sent by the Secretary of the Corporation to the Company, to extend the period of Limitation. The trial Court held that the Se cretary's letter constituted an acknow ledgment by an agent who had implied Authority to make an admission of liabi lity. But, when the case came up in a first appeal before this Court, a Division Bench of this Court held, in L. R. Cotton Mills v. Aluminium Corporation of India Ltd., AIR 1967 All 391, that the so-called acknowledgment by the Secretary of the Corporation could not extend the period of Limitation. This Court held the Se cretary's letter to be part of mere nego tiation through an officer whose Authority to make an acknowledgement of liability on behalf of the Corporation was not esta blished. The Corporation's appeal was, therefore, allowed by this Court.
(3.) DURING the pendency of the above-mentioned appeal of the Corporation, this Court had passed an order, on 11-5-1951, requiring the Corporation to deposit, as agreed upon between the parties, a sum of Rs. 1, 00, 000.00 in the execution Court and ordering the remaining sum decreed to be set off against claim of the Cor poration against the Company. The amount deposited in Court was with drawn by the Company on furnishing security. The decree was thus satisfied. But, when its appeal was allowed, the Corporation filed a restitution application which was allowed on 15-4-1967. The Company was directed to pay a sum of Rs. 4, 11, 554.00 to the Corporation by way of restitution. The company has filed an appeal in the Supreme Court of India against the judgment and decree of this Court in the abovementioned First Ap peal. The appeal could be filed as a matter of right and is still pending. It did not, however, obtain any order from the Supreme Court to stay restitution or execution proceedings. Nor did the Company file any appeal against the resti tution order which has become final.;