Chakravartti, C.J. - (1.) We have heard the learned Advocate-General for the appellants in this appeal at some length and having done so, we are of opinion that the proper course for us to adopt will be to adjourn the hearing of the appeal till after the decision of Suit No. 1225 of 1951, -- 'Premraj Dulichand v. Mahaltixmi Cotton Mills Ltd.', pending on the Original Side.
(2.) The appeal has arisen in the following way. The four appellants, who are creditors of the respondent-company, applied for a winding-up order against it on the ground that 'the first instalment of their debts, which had already become payable under the provisions of a certain scheme, had not been paid in spite of notices of demand under Section 163, Indian Companies Act. The company's reply was that the debts claimed by the appellants were undoubtedly due to them, but this scheme provided that the debts were to be paid out of the profits and inasmuch as the company had not made sufficient profits since the date of the scheme, the debts had not yet become payable. To that plea the appellants' rejoinder was that the provision as to payment out of profits was repugnant to other and clearer provisions of the scheme and ought, therefore, to be disregarded. The learned trial Judge, Banerjee J., accepted the contention of the company and held that the provision as to payment out of profits was an integral part of the scheme which could not be Ignored. Necessarily, he "Held further that since the company had yet made no sufficient profits, its liability to pay the debts had not yet arisen and therefore the company's failure to pay the first instalment of the appellant's debts could not be a ground for making a winding-up order. Two other breaches of the scheme were also urged by the appellants as entitling-them to a winding-up order. With respect to them, the learned Judge held that although the breaches alleged had occurred, they were not such as to make it just and equitable for him to make a winding-up order because of them. He accordingly dismissed the petition for winding-up and thereupon the four creditors preferred the present appeal.
(3.) Before us, the learned Advocate-General repeated the argument that the provision as to payment out of profits was repugnant to the whole tenor of the scheme and inconsistent with certain specific provisions and that, therefore, it ought to be held that the liability to pay had arisen although no profits had been made and that the failure of the company to pay the first instalment of the appellants' debts in compliance with the statutory notice of demand entitled the appellants to a winding-up order. We put it to the learned Advocate General whether this was not a case of a 'bona fide' dispute as to the debts and whether the petition for winding-up should not for that reason be dismissed or, at least, kept pending till the appellants established their claim in a regular suit. We had in mind a passage in "Buckley on the Companies Acts" in which the effect of English decisions on the subject has been summarised. The learned Advocate General pointed out that there was no dispute in the present case as to the existence of the debts, but only a dispute as' to the time of payment. He contended that, in such a case, the winding-up Court was entitled to and indeed ought to go into the dispute itself and proceed to dispose of the petition for winding-up according to its finding. In aid of his contention, the learned Advocate-General referred to the decision of the Court of Appeal -- 'In Re Welsh Brick Industries Ltd.', 1946-2 All ER 197 (A).;