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TMI Blog2001 (8) TMI 1273X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain salient events to appreciate the present Judge s summons and the controversy therein. 3. On 2-2-2000 the petitioner bank filed a petition under sections 433, 434 and 439 of the Companies Act, 1956 ( the Act ) seeking orders from the company court to wind up the respondent-company alleging failure on its part to pay off the debt. During the pendency of the petition, it appears that on 25-6-2000 both the parties executed Memorandum of Understanding (MOU) to which Avenue Supermarks (P.) Ltd. the then purchasers for the sale of the secured property for Rs. 10,61,00,000 was also a party. On the basis of the aforesaid MOU the parties filed a consent terms before the court on 25-6-2000. According to the respondents, the aforesaid purchaser did not purchase the landed property as in the meanwhile, certain persons had trespassed the property and the respondents had requested the police to remove the trespasser s. According to the respondents, in view of the sale of the said property having failed the respondent-company could not clear the petitioners claim. It further appears that in the second round of negotiations, the parties again filed fresh consent terms on 22-3-2001. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to the respondents, they could not generate the funds and, therefore, they could not make payment to honour their commitment in the second consent terms. They have, therefore, approached this court by way of present application for the reliefs prayed for. 5. The petitioners have very strongly and vehemently opposed any reliefs being granted to the respondents in the present application, as according to them, the respondents have flouted even the second consent terms and, therefore, they are unable to discharge their liability of the debt towards the petitioner and, therefore, the respondent-company deserves to be ordered to be wound up in accordance with the provisions of law and as provided in the consent terms. The petitioners do not agree to any of the terms proposed on behalf of the respondents. According to the petitioners they have no faith and trust in the respondent-company. The respondents have filed affidavit in support of the judge s summons. It appears from the affidavit that the respondent-company has been taking all the efforts to sell the secured properties to clear the claim of the petitioners. This fact is reflected in the very conduct of the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the interest of anybody. I am equally anxious that the petitioners must get their amounts of debt back from the respondents. In my anxiety to do so. I have called upon the learned counsel for the respondents to file a solemn undertaking to this court undertaking to honour the revised commitment proposed by them. The respondents have filed a solemn undertaking in the form of an affidavit which reads as under : "We, Badridass Gauridatt Limited, the respondent-company abovenamed through Mr. Ajay Gupta, Director do hereby agree and undertake to this Honourable Court to pay and do pay to the petitioner bank amount of Rs. 3,43,29,051.99 with interest as set out in clause 1 of the consent terms dated 22nd March, 2001 in two equal instalments, the first instalment being on or before 31st October, 2001 and the 2nd instalment being on or before 31st December, 2001. We further agree and undertaken to this Hon ble Court that any single default in the aforesaid payments shall make applicable the provisions of clause 3 of the order dated 23-3-2001 read with the consent terms dated 22-3-2001. Same as aforesaid the rest of the provisions of the order dated 23-3-2001 read with the consent ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in issuing such no-objection to enable the respondents to pass clear title to the purchaser. 8. I am fortified in my view to grant extension of time to the respondents in payment of the instalments and to condone the delay in the aforesaid circumstances by the following observations of the Supreme Court in the case of Bhagwan Swaroop v. Mool Chand 1983 (2) SCC 132. I am not modifying any decree but I am extending the time in making payment of the instalment in the consent terms. As observed by the Supreme Court, it is for the court to exercise its jurisdiction under section 148 of the Code of Civil Procedure, 1908, to extend such time if it is in the interest of justice. The consent terms filed by the parties have merged in the order of the court as such this court can very well extend the time in making payment of the instalment. Shri Khambatta for the respondents has also pointed out rule 9 of the Company Court Rules which confers inherent powers on this court to pass any order in the interest of justice. He has also rightly pointed out the provisions of section 442 in that respect. Following the aforesaid decision of the Supreme Court, according to me, it is not necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into between the parties had a force of decree as the respondents were required to make payment in accordance with the consent terms. The said consent terms, therefore, could not be modified by this court as it had acquired the status of a decree. Shri Tulzapurkar has further relied upon a judgment of the Supreme Court in the case of Dhanajaya Reddy v. State of Karnataka with Vanaja v. State of Karnataka reported in AIR 2000 (4) SCC 9 (sic). The ratio of this judgment is that the power must be exercised in the manner provided by the statute. On this aspect also there is absolutely no dispute or doubt in my mind that if the law requires exercise of power in the prescribed manner it must be done in that manner alone. With respect to the learned counsel in the present case I am not at all departing from the well established law. The observations made by the Supreme Court in the case of Bhagwan Swaroop ( supra ) are very clear. Pursuant to the said authority I have acted in the interest of justice to modify the consent terms and accept the rescheduling of the payment of the debt by the respondents to the petitioners as undertaken by the respondents. 12. In the ci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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