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TMI Blog1984 (10) TMI 192X X X X Extracts X X X X X X X X Extracts X X X X ..... h was recorded in the court. What was agreed between the parties was that the sum of Rs. 3,75,000 was due to the petitioner and the company agreed to pay that amount in monthly instalments of Rs. 25,000 each and the first instalment was to become due on February 16, 1983, and, thereafter, eight instalments were to become due and payable on the 15th day of each succeeding month. It was also provided in the compromise that if there were two consecutive defaults, petitioner will be at liberty to apply to the court for revival of the petition. The compromise was recorded and the learned company judge by an order passed on the same day directed that a personal undertaking as aforesaid will be filed by the managing director on or before January 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bank account, the company could not function and the manufacturing activities of the company have stopped since January, 1984, and because of the interim orders, the working of the company is paralysed. It is further submitted in the affidavit-in-reply that after the consent terms were agreed to between the parties, there were two cyclones and the company suffered heavy loss and the insurance company paid a sum of Rs. 4 lakhs which was appropriated by the bank and, therefore, the company was not able to pay the instalments which became due. Now, these objections are required to be considered. It is more than clear from the affidavit-in-reply itself that the company is not working from January, 1984, and all its operations have come to a sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unable to pay its debts. Next legal submission is that unless the amount of Rs.1,10,000 which is received by the petitioner is deposited in the court, the petition cannot be admitted. To strengthen the argument, reliance is placed on the case of Bombay Castwell Engineering P. Ltd., which was decided by the Bombay High Court on February 18 and July 9, 1982 [1984] 55 Comp. Cas. 75 (Bom.). Now, it was also a case where during the pendency of a petition, a compromise was entered into between the parties. There, the compromise did not provide for reviving the petition, but it provided that if the amounts are not paid as per the compromise, the petition would automatically get admitted. Thereafter, it appeared from the judgment that Rs. 37,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors arises only at the time when the order for winding up is passed. That this is so is held by the Bombay High Court. That, therefore, this ruling does not help the company because I am not deciding as to whether the petitioner would be getting preferential right or would not be getting preferential right. That question would arise some time after the petition is admitted. The only question, therefore, that remains is whether there is a just claim, a bona fide claim, made by the creditor which the company is unable to pay. My attention was drawn to another case of Cotton Corporation of India Ltd. v. United Industrial Bank Ltd., which was decided by the Supreme Court of India on September 19, 1983 [1984] 55 Comp. Cas. 423 . On p. 439, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rector was directed to file a personal undertaking which he did not file. Thereafter, according to the consent terms, amounts were not paid. The petition got revived. The claim can never be stated to be an unjust claim. Now, what is required to be determined is whether the petitioners are trying to pressurise the company for payment. There is no question of pressurising the company. A statutory notice was given. Enough time as demanded was given to receive a just claim, a period longer than what was suggested by the company was given. Yet, the company was not able to pay its debts. It is not shown to be a company which could be suggested to be a solvent company in the sense that it is a company which has stopped its manufacturing activity f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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