Sanjib Banerjee, J. - (1.) THE company disputes not so much the factum of indebtedness to the petitioner as the quantum thereof to resist admission of the creditor's petition for having the company wound up. The company suggests that if accounts are required to be taken between the parties, that would have to be done in regular action and the winding up proceedings should await the result of such action.
(2.) THE manufacturer seeks to realise the price of cars sold by it, on principal to principal basis, to its distributor and is met with the plea that till such time the company is given credit for commission due to it, the claim must wait. The company seeks commission but does not quantify it, possibly because upon quantification the entirety of the demand for commission can be subtracted from the petitioner's claim and the remainder be found to be the admitted debt. The company raises the question of commission only to show that it had some form of counter -claim and urges that the citing of a counter -claim is enough to unsettle apparently settled accounts and resist a petition for winding up. Claims in rupees are resisted by counter claims in paisa and it is urged that till the exact excess of the rupees over the paisa is established, the petition cannot proceed to the next stage. An old English judgment is referred to by the company to suggest that the purpose of the relevant provisions now found in Sections 433, 434 and 439 of the Companies Act is to wind up insolvent companies and to make them pay their debts so far as their assets would extend. Such provisions cannot be stretched, the company asserts, to take accounts between two solvent parties as in a regular civil suit.
(3.) THE company relies on the principle established by Sir John Romilly, M.R., in Brighton Club & Norfolk Hotel Co. Ltd., In re 55 ER 873 which is summarised in the following lucid words: Suppose the company said, 'We are now willing to pay the debt', then this question would arise: What is the debt, what is really due to the Petitioner on the claim ? I must then take the accounts, and do the very thing which cannot be done except by bill, unless in cases where there is fraud and collusion, and I should thus take complicated and contested accounts, between solvent persons, under the powers of an Act of Parliament which meant to do nothing but to wind up insolvent companies and to make them pay their debts, so far as their assets would extend. Far from being insolvent, this company is carrying on a thriving business, which I am asked to stop, merely because there is a quarrel between the company and their contractor as to what is due to him.;