9911796707
TMI Blog2004 (8) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... st calculated at agreed rate of 16.98 per cent per annum) as on 8 July, 2003 and the respondent has not paid this amount to the petitioner in spite of various demands as well as statutory notice issued under sections 433 and 434 of the Act. 2. The transaction unfolded in the petition relates in grant of loan in the sum of Rs. 3,00,00,000 which petitioner agreed to disburse to the respondent-company for purchasing equipment for the advancement of the business of the respondent-company. It was agreed that this loan shall be repayable within 12 months from disbursement and the equipments purchased would be hypothecated with the petitioner by way of security for the repayment of the loan. The managing director of the respondent- company lat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 34,61,539. 5. The petitioner alleges that despite all undertakings and commitments rendered by the respondent, the respondent-company committed default under agreement dated 28th June, 2002 and the outstanding due as on 8th July, 2003 inclusive of interest was Rs. 4,20,97,018. The cheques that had been tendered by the respondent in purported repayment of dues under the agreement were also dishonoured upon presentation. Notice of demand dated 15th July, 2003 was issued followed by additional notice dated 29th July, 2003 containing corrections of one or two errors that had crept in the former notice. However, the respondent-company failed to respond to the said notice. The petitioner, in these circumstances filed O.A. No. 68/2003 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k of Nova Scotia v. RPG Transmission Ltd. [2002] 101 DLT 154. 2 He argued that in the aforesaid case, precisely this very issue was considered, and it was held that when the bank takes recourse to filing the recovery proceedings in the Debt Recovery Tribunal, winding up petition would not be maintainable. It was also submitted that the sound principle based on public policy is that two parallel proceedings for same cause of action were not maintainable; and as petitioner had taken recourse to the proceedings under the Recovery of Debts Due to Bank and Financial Institutions Act, 1973 (hereinafter referred to as the Debts Recovery Act ) by filing OA No. 68/2003 before the Debt Recovery Tribunal-III, Delhi, second proceedings for the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on was that the judgment of the Single Judge of this Court in the case of Bank of Nova Scotia ( supra ) did not lay down the law correctly against which appeal was pending before the Division Bench. He submitted that in any case, the said judgment had no application to the facts of this case. 9. After considering the rival submissions, I am of the view that at this stage, it is not necessary to decide the issue raised in the application. Admittedly, the appeal against that judgment being CA No. 2/2003 is pending before the Division Bench and I am infor- med that the same is coming up for hearing on 16th September, 2004. Instead of awaiting the outcome in the said appeal, proper course would be to direct the respondent to file reply to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany Judge thereafter perforce carefully considers the defence put forward by the respondent company. Till this stage, the Judge does nothing that is contrary [to] or different [from] adjudication which according to the Concise Oxford Dictionary is to decide judicially regarding a claim, etc. After the introduction of the RDR Act, I find it difficult to accept the preservation of the jurisdiction of the Company Judge to adjudicate upon matters which fall within the purview of the Act. Experience shows that although a clear admission of debt may be absent at the stage of the issuance of notice on the winding-up petition, it may become apparent after the pleadings have been completed. Conversely, there may be an admission of debt, which pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... knowledging therein that it owed a sum of about Rs. 3.50 crores to the petitioner-bank in the following words : "In order to hand over the 100 seat call centre to the buyer in a running condition as mentioned above, the company has to deal with the following five parties on priority without whose support the deal is not possible and make one, time settlement (OTS) of their dues. 1. ICIC1 Bank Ltd. The second creditor had given loan to the company and to whom the assets of the company are hypothecated. As on date, the total outstanding amount of the ICICI Bank Limited is about Rs. 3.50 crores." 12. Although there is no decree passed by the Debt Recovery Tribunal so far, may be, the respondent company would be in a position to expla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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