9911796707
TMI Blog2001 (4) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... is entitled to claim a sum of Rs. 40,85,891 along with the interest of Rs. 83,175 at 24 per cent per annum up to 30-11-1998, totalling to Rs. 41,69,066 from the respondent-company paid on account of lease finance for purchasing plant and machinery from one Stretch Blow Systems carrying on business at No. 19, Industrial Estate, Guindy, Chennai-600 032. The respondent-company deposited several cheques with the petitioning creditor drawn on Union Bank of India, No. 55/58, Ezra Street, Calcutta-700 001, on account of lease rental as against the financial arrangement as a promise of payment with an undertaking and declaration that they shall keep and maintain a balance on the date and shall not advise the banker to stop payment. The petitioning ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be any embargo as regards the same. 3. The respondent has taken a plea that there is a prior suit between the company being the plaintiff, the petitioner being defendant No. 1 and the seller, i.e., Stretch Blow Systems being defendant No. 2. In the said suit several prayers are made as against defendant No. 1 in the form of declarations. If today the order is passed in favour of the petitioner, the same will substantially prejudice the claim of the company being the plaintiff in such suit. The company wanted to make out a case in the said suit that the petitioner herein was fully aware about the defects of the machinery supplied by defendant No. 2 therein. Therefore, the secondary liability lies with the petitioner. Hence, the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h has been filed by the petitioner shows that if I pass the order which is to remain in force till date will be nothing but tantamount to a decree which is sought to be passed in the suit itself. Such prayer has been made in the plaint itself. It is the burden on the plaintiff to pay the said amount as mentioned in the agreement itself. At no point of time such agreement has been denied including at the time of agreement when it has been put forward by Mr. Mitra. In view of that the interim order which has been passed by me is vacated." 5. No appeal was preferred from such order. Therefore, the order of the co-ordinate jurisdiction can be treated as effective persuasive value for the purpose of drawing inference in favour of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eques on account of lease rental and on account of damages are altogether different. One cannot be appropriated with other. Therefore, there cannot be any legal impediment in realising such sum. Further, the proceedings under a suit and a winding up are totally distinct and different. The winding up is not a debt recovery process but definitely a process for drawing an inference as to whether the company will be wound up or not which cannot be prevented without any cogent ground. Such ground is that the company is commercially solvent and able to pay its debts. Therefore, to test the bona fides the Court can only defer the order of winding up by putting terms of payment in the meantime failing which the order of winding up is obvious. Alt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... real defence and not a sham one in the sense that if the facts alleged by the defendant are established there would be a good or even a plausible defence on those facts. If the Court is satisfied about that leave must be given. According to the ratio of the judgment where the defence can be described as more than shadowy but less than probable leave to defend would be given. Therefore, there is scope for the Court to evaluate the situation. Can it be said that the defence as described as more than shadowy even for the purpose of testing the bona fides. My answer is no . Therefore, the principle as regards defence as laid down in Mrs. Raj Duggal s case ( supra ) , irrespective of the question of applicability of the legal princ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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