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TMI Blog1986 (10) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... . JUDGMENT R.N. Mittal, J . This petition has been filed by the petitioner under section 433 of the Companies Act, 1956, for ordering winding up of the respondent company. It is stated in the petition that the petitioner filed a suit for recovery of Rs. 3,20,138.67 against the respondent. A compromise was arrived at between the parties therein according to which it was agreed that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petition, the respondent paid an amount of Rs. 1,25,000. Thus, it paid in all Rs. 1,47,072. Learned counsel for the respondent has contended that the amount of Rs.3,20,138.67 claimed by the petitioner was by way of penalty and that consequently, he could not recover that amount. He could recover only Rs. 1,47,072 which has already been paid to him. In support of his contention he refers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompromise decrees. Mulla, in his well-known treatise on the Indian Contract and Specific Relief Acts, 9th edition, page 577, dealt with this matter as follows : "Accordingly, a conventional larger sum agreed upon as payable in the event of failure to pay a smaller sum, or in such an event among others, is treated as penal only." I am fortified in the above view by the observations of the Ful ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint from the judgment-debtor. It was observed therein that the provision for the payment of the amount claimed by the decree-holder in the plaint, if there was default in the payment of any one of the instalments payable under the consent decree, was clearly in the nature of a penalty and the executing court had power to relieve the judgment-debtor of it. I am in respectful agreement with the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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