9911796707
TMI Blog2003 (5) TMI 362X X X X Extracts X X X X X X X X Extracts X X X X ..... the liabilities of the company were far in excess of the assets and it had become commercially insolvent and incapable of repaying the amount. According to the allegations in the above petition, the company had a paid up capital of Rs. 30 lakhs and as on 31-3-1994 the company had to pay nearly Rs. 49 lakhs to the petitioner bank as the bank had accorded overdraft facilities, cash credit facilities and loans to the company. It was further alleged that there were several other creditors and other liabilities for the respondent company and because of the huge liabilities the substratum of the company had completely been vanished and the company was incapable of paying off its debts. Hence the company has to be wound up under section 433(e) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and "The New Indian Express". This Court further found that though several opportunities were given to the company to pay off the debt to the petitioner in C.P. 4/2000, the company could not pay it. 5. The main argument advanced by the learned counsel for the respondent company was that the petitioner bank had already approached the Debt Recovery Tribunal and as such the proceedings for winding up pending before the Company Court was not maintainable. It was argued that when the bank had opted for realisation of the amount approaching the Debt Recovery Tribunal, the proceedings before the Company Court cannot be proceeded. The learned counsel for the petitioner bank submitted that the reliefs prayed for before the Debt Recovery Tribunal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g up proceedings also can be continued or initiated before the Company Court. A similar approach was made by the Division Bench of the Bombay High Court in Viral Filaments Ltd. v. Indusind Bank Ltd. [2001] 4 Com. LJ. 44 (Bom.). The learned counsel for the respondent company placed reliance on a decision of the Delhi High Court in Bank of Nova Scotia v. RPG Transmission Ltd. 1 [2003] Be 270 wherein a contrary view was taken. The above judgment also does not say that once the creditor approaches the Debt Recovery Tribunal, he cannot approach the Company Court for other reliefs under the Company Law. In the above judgment it has been observed : "A possible exception could be where a judicial determination has already taken place, such as wher ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal for a decree for the amount. That did not mean that the grounds for winding up ceased to exist. In the present case a number of claims have been put forward by the employees also claiming their wages. For the last so many years wages of the employees were not being paid. The company was under lock out. It was further submitted that some of the creditors have already removed certain properties belonging to the company. Some of the employees of the company filed applications and affidavits in support of an order of winding up of the company and for impleading them as additional respondents. C.A. 292/2001 was filed by C.C. Kurian and four others, employees of the respondent company Express (Malayalam) Pvt. Ltd. for impleading them as addit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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