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TMI Blog2005 (3) TMI 470X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Trial Judge on 29-6-2001 and order dated 23-11-2004. 4. Mr. Mukherjee, Learned Senior Advocate appearing on behalf of the company drew our attention to the order dated 29-6-2001 and submitted that the winding up petition was admitted by the said order by His Lordship. He further contended that in the said order dated 29-6-2001, it has been specifically stated that by virtue of a Memorandum of Understanding (hereinafter referred to as 'MOU') entered into between the parties on 13-2-2001, the appellant herein would supply software device to the company and the company in turn will pay a sum of Rs. 25 lakhs in cash and Rs. 25 lakhs by way of allotment of shares in the company. In accordance with the Schedule which was entered into betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders so passed by the Hon'ble Court would affect the appeal which was pending before the Court and further it was specifically submitted that although the company has no tangible asset, the same is a running one having work-force working in various units and earning a profit of Rs. 1 lakh per annum. Such fact also to be considered. 8. He further drew our attention to the said order and contended that the Hon'ble Judge held that the Court cannot go beyond the order of admission. But in fact the Court has to decide the application after giving a chance to the company to file an affidavit and in this case affidavit was filed before the Hon'ble Judge and even then it was submitted that the company is a profiteering company. The Court held th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 2,74,000 leaving a balance sum of Rs. 22,26,000. So far the transfer of shares, we have specifically conceded that part before the Trial Judge and it would be evident from the order that we would take necessary steps in respect of that part of the transaction. So far the debt of the company is concerned, it would appear that Rs. 22,26,000 is due and payable by the company to the respondents. He also drew our attention to the letter addressed by the Advocate-on-Record of the respondents to the appellants on 6-8-2002, just after the last month for the payment in accordance with the agreement and/or MOU entered into between the parties. That was the reminder and whereby it was specifically pointed out that they have failed to make the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RC Steels (P.) Ltd. [APOT No. 398 of 2004] observed that an order of admission is a final decision on merit. The same view as has been taken by the Hon'ble Division Bench in a subsequent decision in the case of Dhariwal Steels (P.) Ltd. [T. No. 318 of 2004]. Hence, he submitted that the Hon'ble Judge has no right which is final and binding upon His Lordship. 13. After hearing the Learned Senior Advocates for the parties since the appeal admitting the winding up petition was also pending before us, we directed Mr. Mukherjee on behalf of the appellants to take instruction whether his client is in a position to secure the claim of the petitioning creditor/respondent by furnishing the bank guarantee and/or the security in favour of registrar, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tune of Rs. 20 lakhs to the satisfaction of the Registrar, Original Side within a period of 4 (four) weeks from date and claim of the petitioning creditor, respondent herein, are relegated to a suit on such consideration condition. However, we make it clear that if the said bank guarantee and/or security is furnished to the satisfaction of the Registrar, Original Side to the tune of Rs. 20 lakhs, the petitioning creditor/respondents herein, shall file a suit concerning the claims mentioned in the winding up petition, within a period of 4 (four) weeks thereafter. 15. In default of furnishing of such bank guarantee to secure the claim as directed hereinabove the Official Liquidator shall proceed in the matter forthwith. The Official Liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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