9911796707
TMI Blog2004 (5) TMI 328X X X X Extracts X X X X X X X X Extracts X X X X ..... to Rs. 1,94,342.25, Rs. 4,43,592.50 and Rs. 4,30,999.50 respectively aggregating to Rs. 10,68,934.25. These bills remain outstanding. The petitioning creditor on the other hand was holding a sum of Rs. 3,04,511.10 on the part of the company. As the company did not make payment of the aforesaid three bills, they adjusted the said amount of Rs. 3,04,511.10 and claimed the balance sum of Rs. 7,64,423.15. Repeated letters/reminders were given on and from April 2 ; 2001, till December 9, 2002. Those letters remain unreplied. The petitioning creditor served a statutory notice of demand on May 7, 2003; through their advocate which was replied to by the company on May 23, 2003, appearing at pages 41 and 42 of the petition. For the first time in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts Pvt Ltd. v. Khatema Fibres Ltd. [2001] 104 Comp. Cas. 254 (All.). ( iii ) Bank of Nova Scotia v. RPG Transmission Ltd. [2003] 114 Comp. Cas. 764 (Delhi). Citing the aforesaid decisions Mr. Ghosh has contended that the prayer for winding up being a discretionary relief should not be granted in the instant case because of the pendency of a parallel proceeding on the selfsame cause of action. On the plea of limitation Mr. Ghosh has contended that although the bills were raised on or after February 8, 2001, since the winding up petition has been filed on February 6, 2004, the claim might be held as barred by limitation, upon a regular trial being made, as according to him, limitation is a mixed question of fact of law. On the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were relations who had fallen out and serious disputes had emerged resulting in the riling of a suit and a company petition, the winding up petition failed solely on the said ground. In the case of Bank of Nova Scotia v. RPG Transmission Ltd. [2003] 114 Comp. Cas. 764 (Delhi) another learned single judge of the Delhi High Court held that since a recovery proceedings by the bank was pending before the Debts Recovery Tribunal on the self-same cause of action the winding up petition was not maintainable. In that decision, his Lordship also considered the 1993 Act and came to a conclusion that the Recovery of Debts Due to Banks and Financial Institutions Act 1993 is a more efficacious remedy than that of winding up proceedings. Consideri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the amount payable to the company by the petitioner. On the contrary there are series of correspondence made by the petitioning creditor demanding the aforesaid sums which stood unreplied by the company until a statutory notice of demand was served upon them. Hence I am unable to accept the contention of Mr. Ghosh on that score. On the fourth and the last question I am also unable to agree with Mr. Ghosh that there has been bona fide dispute raised by the company on the third bill. In case the consignment note was not raised by the company what could prevent them from making a clarification to that effect when series of correspondences were made by the petitioning creditor demanding payment of the bills including the third bill. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... commencing from July 1, 2004 and thereafter on the first day of the each succeeding month. However, in default of payment of any one instalment the petitioner would be at liberty to make publication in terms of the liberty granted herein. In case the amounts are paid the winding up petition would remain permanently stayed. Mr. Aniruddha Roy learned counsel appearing for the petitioning creditor has prayed for agreed interest in terms of clause 10 of the customer agreement appearing at pages 15 and 16 of the winding up petition. Since I have exercised my discretionary power in admitting the winding up proceeding I have granted interest at the rate of 6 per cent. Balance interest would be decided in the pending suit, if pressed by the plai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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