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TMI Blog2005 (6) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... er prior to the expiry of the said fixed period only in the event of the defaults and breaches committed by the company as set out in clause 9 of the Lease Agreement. The monthly lease rental was fixed at Rs. 89,535 to be paid by the company to the petitioner by the 1st day of every month with the provision for payment of interest at the rate of 21 per cent for delay in payment. Clause 10.4 of the Lease Agreement entitled the petitioner to vary and revise the lease rentals with the company being bound by such variation or revision. 3. It is also the case of the petitioner that the respondent-company received and accepted all the equipments leased to it under the Lease Agreement and put the same to use without any objection of any kind whatsoever. It is also the case of the petitioner that in accordance with clause 10.4 of the Lease Agreement, the petitioner duly and validly revised the monthly lease rentals under the Lease Agreement from Rs. 89,535 to Rs. 98,700 per month. The revision being effective from 1-12-1991, the respondent-company accepted this variation without any objection. 4. It is also the case of the petitioner that the respondent-company made payments toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. At the time of admission of the petition, this Court has passed detailed order dealing with all the contentions raised on behalf of the respective parties. The Court has observed in the order dated 16-9-1997 that the foundation of the petition is that under lease agreement dated 22-3-1990, as on 9-7-1992, the respondent-company was liable to pay the petitioner an amount of Rs. 32,07,100 for which notice under section 434 was served at the registered office of the respondent-company. Despite due service of the said notice, the company had not responded and has neglected to pay the amount due to the petitioner. No reply to the notice under section 434 of the Act has been made by the respondent-company. The Court has also observed that the respondent-company has filed its reply raising the plea that the nature of lease agreement by referring the same to be a hire purchase agree-ment and also dispute about the lease money or hire pur- chase instalments payable under the agreement on account of defec-tive supply of nine gas cylinders and also disputes as to the rate of interest charged on the amount referable to short supply. The respondent-company has, however, admitted that it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purpose of endorsement of any contract. The agreement choosing forum to which the parties can reach, and to which the above principle is referable, is for enforcement of rights arising out of contract and not rights which have been conferred by statute. 9. The Court has further observed that section 10 of the Companies Act confers exclusive jurisdiction on the High Court in the matter of petitions or applications to be filed under the Companies Act. The High Court has jurisdiction in relation to the place at which the registered office of the company concerned is situated and it has the exclusive jurisdiction in respect of the petitions or applications made in connection therewith under the Companies Act. Thus, for any petition or application for winding up of a company under the Companies Act, the exclusive jurisdiction in respect of the companies registered within the State of Gujarat, rests with the High Court of Gujarat, except to the extent such jurisdiction has been conferred on District Courts, subordinate to this High Court, under sub-section (2) of section 10 of the Act. The Court has, therefore, come to the conclusion that in the face of exclusive jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was also without substance. The Court further observed that the suit for enforcing recovery and petition seeking winding up of the company on the plea of its inability to pay its debt are neither substitute for each other nor alternative to each other. As a matter of fact, the two are independent and different remedies aimed at different objects, though founded on same event, namely, non-payment of dues. While the purpose of a civil suit or other remedies for the purpose of enforcing recovery under a contract is primarily to secure return of one s dues from the other which are outstanding. In other words, it is for enforcement of contractual obligations. The petition for winding up on the other hand is aimed to remove the respondent-company from the field of business altogether in general interest by bringing its corporate entity to a close. It is not for enforcement of contractual obligation. The Court, therefore, has come to the conclusion that neither the fact of filing a petition by a creditor on the ground that respondent is unable to pay its debt affects his right to file a civil suit for enforcement of his claim against the respondent-company, nor pursuing a remedy for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and simply because company has not made the payment, the Court should not pass the winding up order against the respondent-company. Except this, no new submission has been made by Mr. Sheth, learned advocate for the respondent. 14. After having heard the learned advocates for the parties and after having gone through their pleadings contained in the memo of petition, affidavit in reply, affidavit in rejoinder and further affidavits and after having gone through the documentary evidences which are produced before the Court, the Court is of the view that company has failed to discharge its financial liability towards the petitioner. In other words, the company has failed or neglected to pay the debt dues to the petitioner. The financial substratum of the company has gone down. Even the time sought for by the respondent-company before the Court on different occasions on the ground that there was possibility of settlement, has gone in vain, as nothing has been produced on record in relation to the talks of settlement or any decision was taken by the parties pursuant to the alleged settlement. The Court is in complete agreement with the reasoning given by the Court at the time of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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