9911796707
TMI Blog1997 (12) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... , to the file and proceed further in the same. 3. The applicant had filed Company Petition No. 245 of 1996, against the respondent, Amar Polyesters Ltd., on the allegations that the respondent-company was owing Rs. 46.94 lakhs to the applicant as the principal dues and further the amount of interest as per the agreement between the parties, executed before filing of the above Company Petition No. 245 of 1996. The applicant company Gujarat State Financial Services Ltd. had filed two criminal cases against the respondent. One criminal case under section 138 of Negotiable Instruments Act, during the pendency of that Company Petition, another complaint filed, after filing of the Company Petition, under sections 406, 468 and 477(A) of the In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the present application. 5. The claim of the applicant is resisted by the respondent by filing affidavit in reply. It is contended that once the original Company Petition is withdrawn the application for revival of the proceedings is not at all tenable in law. It is contended that as per the provisions of Companies Act, the order of winding up of the company if happened to be passed in the proceedings, they would relate back to the date of filing of the original petition. Admittedly, the Company Petition was disposed of on 12-8-1997 and if it is to be restored by allowing his application and if ultimately said Company Petition happened to be allowed then transaction which have taken place between 12-8-1997 and till date of allowin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the purpose of winding up of the company. It is not a proceeding meant for recovery of debt. Admittedly, after filing of Company Petition No. 245 of 1996 the applicant has entered into the consent terms with the respondent company, its debtor and had entered into agreement to receive its debts by instalments. When the creditor enters into agreement with the debtor and accepts to receive its debts in instalments then that conduct of creditor itself shows that the claim of the creditor, which is made in Company Petition that the debtor is not in a position to satisfy its debts, is not correct. The consent terms are voluntar-ily executed by the creditor and creditor agrees and allows the debtor to satisfy its debt in instalments, thereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. It is also an admitted fact that as per the consent terms an amount of Rs. 4 lakhs, no doubt, out of the total of more than Rs. 48 lakhs has been paid by the respondent. The respondent has also withdrawn its civil suit filed by him in the City Civil Court. The present applicant has withdrawn one of his prosecutions against the respondent. No doubt, the second prosecution still continues. But once the proceedings are withdrawn by then and one instalment is paid by them, by that conduct of both the sides the consent terms were acted upon by the parties. Therefore, once the consent terms, in agreement, are acted upon by the parties, the cause of action for fulfilment of the terms of the contract would not make the contract illegal or voi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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