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TMI Blog2008 (5) TMI 413X X X X Extracts X X X X X X X X Extracts X X X X ..... abrata Mukherjee, Pratap Chatterjee, Anirudha Roy and Ms. Sudeshna Bagchi for the Respondent. JUDGMENT Pinaki Chandra Ghose, J. - This appeal is directed against an order dated 10-1-2007 whereby the Hon ble Company Judge was pleased to direct that the JMD Medicare Limited is to be wound up in accordance with the provisions of the Companies Act, 1956. 2. It is to be noted that such order was passed after the appearance before the Hon ble Court and after the advertisement was published in terms of an earlier order dated 7-7-2005 admitting the winding up petition filed by the petitioning creditor. The Hon ble Court at that point of time came to the conclusion that the Company was unable to pay its debts and the claim of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casions on the ground of default made by the Company in payment of the purchased price. 7. It is also admitted that the Company on several occasions requested and made assurances that the payment should be made to the petitioning creditor. It further appears that the Company took various pleas to explain its inability to pay the price of the MRI equipment. Some cheques were issued by the Company which were dishonoured on presentation. The plea of the Company was that the Company was facing financial crunch. 8. It further appears from the facts and the correspondences exchanged between the parties that the company repeatedly assured Siemens that payment would be made in accordance with the Schedule revised from time to time. 9. W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Corpn. AIR 1977 SC 577 and Bayoil SA Seawind Tankers Corpn., In re 1999 (1) All ER 374 and submitted that a company had a genuine and a serious cross-claim. 12. Therefore, according to him, the Court should not have passed the said order. 13. On the contrary, it was submitted by Mr. Mukherjee, learned Senior Advocate appearing on behalf of the respondent that even a secured creditor can apply for winding up of a petition and hence he drew our attention to sections 439(1)( b ) and 439(2) of the Companies Act. 14. Mr. Mukherjee further submitted that the petitioning creditor has specifically stated in paragraph 64 of the winding up petition that the petitioner has reason to believe and apprehend that the value of the system i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und to press this appeal. He also relied upon the decisions reported in Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. [1999] 97 Comp. Cas. 683 1 (SC) and Harinagar Sugar Mills Co. Ltd. v. M.W. Pradhan AIR 1996 SC 1707 at page 1709 where the Hon ble Supreme Court has approved the passage of the Palmer s Company Precedents, Part-II, 17th Edition, page 25 where it has been specifically held that that it is a well-known proposition of law that winding up petition is an equitable mode of execution of just and undisputed debts. Therefore, according to him, the Court has power to pass such order. 20. He further submitted that the Company had cited 3 cases namely, ( a ) Mediqup Systems (P.) Ltd. s case ( supra ) on the pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ills Co. Ltd. ( supra ) that although winding up petition is not a normal alternative for the realisation of debts yet it is a form of equitable execution. 25. The suit which has been filed by the petitioner is nothing but a counter blast and the same was filed even after the winding up petition at the first stage. 26. Therefore, after perusing all these facts and circumstances of the instant case, we find that the Hon ble Company Court has correctly came to the conclusion and passed the said order. 27. Hence, we do not find that there is any reason to interfere with the said order and we affirm the judgment and/or the order so passed by the Hon ble Company Judge and hence, in our considered opinion, for the reasons stated here ..... X X X X Extracts X X X X X X X X Extracts X X X X
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