9911796707
TMI Blog2002 (8) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... udge has not considered the case properly. The respondent-company was unable to pay its debt even after service of notice and the learned Single Judge has erred in not ordering winding-up of the company and has not considered the case in Mitsugen Glazes Ltd. v. Varkey Overseas Trading Co. (P.) Ltd. I.L.R. 1999 Kar. 3354 in a proper way. Therefore, the order of the learned Single Judge is liable to be set aside and winding up order has to be passed. 3. Brief facts as alleged are : It is alleged that the respondent came forward with a scheme to develop and promote 699 classic farms providing various facilities in Sy. No. 14/1 of Kenchenahalli, Nelamangala Taluk, Bangalore District. The total cost of one farm was Rs. 1,48,000 payable in 59 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l sum of Rs. 86,000, i.e., Rs. 66,000 in 33 monthly instalments from 19-8-1995 to 7-3-1998, two annual instalments of development charges of Rs. 5,000 each and Rs. 10,000 on 19-8-1995 as initial deposit. In O.S.A. No. 75 of 2002, the appellant paid total sum of Rs. 86,000, i.e., Rs. 66,000 in 33 monthly instalments from 6-7-1995 to 7-3-1998, two instalments of annual development charges of Rs. 5,000 each and Rs. 10,000 on 6-7-1995 as initial deposit. In O.S.A. No. 76 of 2002,the appellant paid a total sum of Rs. 1,31,000, i.e., Rs. 1,06,000 in 53 monthly instalments from 19-6-1998 to 10-12-1999, 3 annual instalments of Rs. 5,000 each and Rs. 10,000 on 19-6-1998 as initial deposit. In O.S.A. No. 77 of 2002, the appellant paid a total sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e service of notice and the only dispute was regarding the rate of interest, that too having agreed to pay the entire amount along with interest at the rate of 21 per cent in one of the letters, have not interfered in the order and held liable to pay admitted liability along with interest of 21 per cent. Whereas, in the instant case, some facility was assured on payment of some money as per the agreement. In absence of any clause for re-payment and further dispute of liability regarding payment of due amount as per letter dated 20-7-1999 stating that there is a balance of Rs. 1,01,000 was due for payment, the learned Single Judge has distinguished the case. 7. In Shakti Prakash Metal Finishers (P.) Ltd. v. Hindustan Machine Tools Ltd. 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressure will be dismissed. The procedure under section 433 is a summary procedure and the disputed questions of fact cannot be decided in a company petition. Moreover, one cannot take parallel proceedings. 10. A reference can be made to the decision of the Apex Court in Amalgamated Commercial Traders (P.) Ltd. v. A.C.K. Krishnaswami [1965] 35 Comp. Cas. 456 wherein, it was observed : "It is well settled that a winding up petition is not a legitimate means of seeking to enforce payment of debt which is bona fide disputed by the company. A petition presented ostensibly for winding up order but really to exercise pressure will be dismissed, and under certain circumstances may be stigmatised as a scandalour abuse of the process of the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputed. Under the circumstances, the company petition for winding-up of the company cannot be invoked. The appellants have a remedy to file a suit for specific performance or as advised, accordingly. In view of this, the argument of the learned counsel is not tenable and is rejected. 14. The learned Single Judge, by an elaborate order has not interfered. On consideration and as discussed, we find no error or illegality in the order passed by the learned Single Judge so as to call for any interference. Accordingly, O.S.A. No. 70 of 2002 and connected O.S.As. are dismissed with no order as to costs. We make it clear that dismissal of these appeals and company petitions will not come in the way of the respective appellants to establish their ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
