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TMI Blog2002 (11) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... nding-up of the defendant. This winding-up petition was contested and resisted by the latter. Finally on 5-1-2002, this Company Petition was dismissed when it was held by this Court that the dispute which the defendant has raised cannot be treated as fictitious and frivolous. It was further held that there appears to be sufficient justification in the claim of the defendant and that the disputes raised are bona fide. It was further not disputed on behalf of the parties to this suit that Company Appeal No. 1 of 2000 is pending in this court against the rejection of Coy. Petition No. 2 of 1999. In the aforesaid background present suit was filed on 16-5-2001 wherein this application has now been filed. 3. Defendant when put to notice i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise its power under section 442 of Companies Act, 1956, is no more res integra in view of the decision of the Supreme Court in Official Liquidator v. Dharti Dhan (P.) Ltd. [1977] 47 Comp. Cas. 420 . In this case, Company under liquidation i.e. Golcha Company had a contract with M/s. Dharti Dhan Private Limited. Latter company was to pay certain sum in the manner agreed in terms of the agreements dated 25-6-1966 and 17-1-1967, Part payment had been made. Since there was default in payment of the amount by this company to Golcha Company, claim under section 446 of the Companies Act was initiated for the recovery of amount due by the Official Liquidator to the Company Judge of High Court of Rajasthan. Meanwhile, Registrar of Compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company judge and ordered stay of proceedings under section 446(2) of the Act against the respondent, Dhan Company, even though this was subjected to the condition that the appellant-company produces the entire documentary evidence inclusive of account books, vouchers, files and other documents and papers in its possession or power relating to the claim in question, as it may desire to produce or the official liquidator desires to summon or as the learned company judge may direct in his discretion and also produces a list of witnesses that the appellant-company may desire to examine in its defence in respect of the claim in question along with an affidavit of what each witness is likely to depose . Thus, the Division Bench had, while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of the plaintiff. Present application was filed on 9-9-2002 that too after the date for leading plaintiff s evidence having been already fixed. It is a different matter that evidence was not present on that date. Looking to the interpretation given to section 442( b ) by the Supreme Court in the aforesaid decision, present application as already noted appears to be an attempt to thwart and stop the process of the present suit. Why no plea was raised in the written statement, learned counsel was unable to satisfy the court. However, he placed reliance on a decision of Madhya Pradesh High Court in the case of Eastern Automobile Syndicate Ltd. v. Babu Rajendrakumarsingh AIR 1959 MP 95. Without being detained by this decision, as well ..... X X X X Extracts X X X X X X X X Extracts X X X X
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