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TMI Blog2003 (6) TMI 338X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned counsel for the respondent files affidavit in reply sworn in by Ms. Kashmira Seth on 26th June, 2003. Affidavit is taken on record. 3. Company Petition No. 188 of 2002 was filed by the petitioner, a creditor, for winding-up of the respondent-company. After hearing the petitioner and the company, the petition was admitted by this court by an order dated 8th August, 2002 and was advertised in Free Press Journal and Janma Bhoomi. It appears that thereafter a settlement was arrived at between the petitioner and the Company. The petitioner therefore, requested the Court for permission to withdraw the petition whereupon the Court directed that an advertisement of the proposed withdrawal be published in the same newspapers. On public ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the applicant the vessel has since been sold but the respondent-company has only made part-payment of Rs. 67.08 lakhs between 19th April, 2002 till 28th February, 2003. According to the applicant therefore a sum of Rs. 87.64 lakhs is still due and payable by the respondent. The respondent-company is unable to pay the amount and therefore the applicant company be substituted as a petitioning creditor in place of the original petitioner in the winding-up petition. 6. The learned counsel for the petitioner submits that in addition to the sum of Rs. 67.08 lakhs, the respondent-company has already paid a sum of US$ 16,000 on 29th April, 2003. The learned counsel submits that applicant has suppressed this payment of US$ 16,000 and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty creditor who opposes the withdrawal of the winding-up petition could have independently filed a winding-up petition. 9. In Harakchand Mansraj v. Emerald Woollen Mills (P.) Ltd. [1990] 68 Comp. Cas. 702 (Bom.) relied upon by the learned counsel for the respondent, this Court observed: "Now substitution, though permissible, is a matter in the discretion of the court. It is not automatic. It does not follow ipso facto upon a mere application in that behalf on the mere allegation, unsubstantiated even if it be, that a company is unable to pay its debts. Much depends on the facts and circumstances which would vary from case to case. Discretion, as all judicial discretion, must be exercised one way or the other, not arbitrarily or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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