9911796707
TMI Blog2005 (3) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany’s banker) that US $ 11,000 was remitted by another company namely, Pameda Medizinische System, GmbH and not by the petitioning creditor? Whether the Division Bench and as well as the Company Judge, in exercise of their jurisdiction under the Companies Act erred in directing the company to deposit Rs. 4,69,480 to secure the alleged claim of the petitioning creditor when the petitioning creditor was not the remitter of the said amount and such was seriously disputed before the Company Judge and the Company Judge did not adjudicate the disputes at controversy and directed the petitioning creditor to file suit in respect thereof? Whether the Division Bench in passing the order under appeal was justified to direct the company to deposit the balance amount when an earlier Division Bench by an interim order reduced the quantum of deposit from Rs. 4,69,480 as directed by the Company Judge to Rs. 2 lakhs in compliance whereof the company had duly deposited Rs. 2 lakhs on 11-11-2002 and the petitioning creditor failed to present any suit within three months thereof as per direction of the Company Judge? Whether the Division Bench is justified in passing the order under appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herein that despite notice, the Company failed and/or neglected to refund US $ 5,000 and US $ 11,000 which was allegedly remitted by the respondent-company as partial bid security in respect of two global tenders. The appellant filed affidavit in opposition to the winding up petition contending that the said amounts were not payable to the respondent-company and the appellant disputed its liability. The following documents were relied in support of the aforesaid contentions: ( i )Intimation note issued by Vijaya Bank being FTTI/NSC/73/99 dated 3-5-1999. ( ii )Foreign Inward Remittance Certificate No. 0014709 dated 6-5-1999. ( iii )Memorandum issued by Reserve Bank of India No. CA EC 357/09 460662/98-99 dated 30-6-1999. ( iv )Document issued by Deutsche Bank showing the name of remitter as PAMEDA. 4. On 12-9-2002, the Company Judge disposed of the winding up petition holding, inter alia, that so far as US $ 5,000 is concerned, the appellant-company has disputed the amount but insofar as US $ 11,000 is concerned, the same should be repatriated to remitter (which in the present case is not the respondent). The learned Judge directed the Company to deposit Rs. 4,69,480 eq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppearing for the appellant made the following submissions: ( a )The Division Bench passed the order without due consideration of the documents on record showing that the remitter of US $ 11,000 was not the petitioning creditor but altogether a different company. ( b )The order passed by the Division Bench failed to appreciate that no debt is due and payable by the appellant-company to the petitioning creditor as they are not the remitter of the subject sum of US $ 11,000 and as such the winding up proceedings is not maintainable by the said alleged petitioning creditor. ( c )The Division Bench erred in dismissing the appeal of the appellant from the order of the Company Judge summarily on the finding that the appellant is not entitled to any stay. ( d )The Division Bench also erred in passing the order giving liberty to the respondent-petitioning creditor to approach the Company Court for fresh direction including for advertisement when the said petitioning creditor failed to present any suit after deposit of Rs. 2 lakhs by the Company in compliance of order of another Division Bench and they cannot have any claim in respect of US $ 11,000. ( e )The Division Bench had act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a suit for recovery of US $ 11,000. 12. Concluding his arguments, learned counsel appearing for the respondent, submitted that the appellant has denied its liability which it had earlier admitted in no uncertain terms and, therefore, this appeal is liable to be dismissed. 13. In this background of the facts, the following questions of law would arise for consideration of this Court : ( i )Whether the Division Bench of the High Court at Calcutta justified in dismissing the appellant s appeal summarily holding, inter alia, that the appellant was not entitled to stay of operation of the order passed by the company Judge under appeal or, in other words, whether dismissal of connecting stay petition could be justified reason alone for dismissing appeal summarily which was based on cogent grounds? ( ii )Whether the appellant-company can be said to be indebted to the petitioning creditor/respondent in respect of US $ 11,000 equivalent to INR 4,69,680 when the said sum was not remitted by the said petitioning creditor namely, Proxima Medical Systems, GmbH? ( iii )Whether the winding up proceedings under the relevant provisions of the Companies Act is maintainable aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute concerning US $ 11,000 also is bona fide. The High Court, on the one hand, has held that the Company has admitted in no uncertain terms that US $ 11,000 should be repatriated to the remitter on the other hand, the learned judge failed to appreciate that the petitioning creditor in the instant case was not the remitter and was not entitled to the said sum of US $ 11,000. It is not in dispute and as admitted by the respondent-petitioning creditor that the remitter of the sum of US $ 11,000 was one M/s. Pameda Medizinische Systems and not the petitioning creditor and that because of the discrepancy in the name of the remitter, the Reserve Bank of India had initially withheld permission. In our view, the prima facie case has been made out by the appellant for not remitting the Indian amount equivalent of US $ 11,000 as admittedly the petitioning creditor was not the remitter and cannot have any claim in respect of US $ 11,000. In our opinion, the learned Judges of the High Court have erred in directing the Company to deposit a sum of Rs. 4,69,480 with the Registrar, Original side of the High Court at Calcutta. The question of the company depositing the same with the Regist ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... definite sum of money payable immediately or at a future date. We are informed that the financial position of the appellant is sound. 20. This apart, both, the learned Single Judge and the Judges of the Division Bench have granted interim relief which can be granted only in aid of, and as ancillary to the main relief which may be available to the party on final determination of its rights in a suit or proceedings. 21. The Bombay High Court has laid down the following principles in Softsule (P.) Ltd., In re [1977] 47 Comp. Cas. 438 : "[Firstly,] It is well settled that a winding up petition is not legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. If the debt is not disputed on some substantial ground, the Court/Tribunal may decide it on the petition and make the order. Secondly, if the debt is bona fide disputed, there cannot be neglect to pay within the meaning of section 433(1)( a ) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated. Thirdly, a debt about the liabil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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