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TMI Blog2008 (7) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... erest was not paid to him after 31-3-2000. This averment of petitioner itself shows his mala fide and ulterior motive. It appears in the facts and circumstances of the case that the petitioner is also responsible for putting the company to suffer loss. Thus it cannot be held that the respondent-company neglected to pay alleged dues within the meaning of section 433(1)(a) of the Act. W.P. dismissed. - S.B. COMPANY PETITION NO. 11 OF 2007 - - - Dated:- 25-7-2008 - SHIV KUMAR SHARMA, J. Amol Vyas for the Petitioner. N.K. Maloo for the Respondent. ORDER 1. The petitioner has approached this court with the following prayer: "( a )to direct and order winding up of the respondent company M/s. Ajanta Construction Priva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or otherwise mortgage, charge, sell, dispose of term of accounts grants, rights and privileges in respect of or otherwise deal with all or any part of the real and personal properties. The petitioner is an unsecured creditor of the respondent company. The petitioner from time to time advanced unsecured loan to respondent company. At the time of advancing loan it was agreed that interest as per prevailing bank rate would be payable on the outstanding amount of loan. The interest was regularly paid to petitioner by respondent-company till 31-3-2000, thereafter the respondent-company stopped to pay the interest and till 31-3-2007 an amount of Rs. 22,49,009 principal amount and Rs. 64,59,969 towards interest became due against the respondent- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the company which has been eroded by his innumerable wrong actions. ( vi )The petitioner and his wife are also shareholders of the company. ( vii )Even though the fund of the company, for accounting purposes may be termed as unsecured loan under specific advice of petitioner, but the father and mother of petitioner also provided funds. ( viii )When the petitioner himself was director of the company till 28-6-2007, the submission of petitioner is surprising that the interest on principal amount in audited account has not been shown and the interest was not paid to him after 31-3-2000. Such action of petitioner itself shows his mala fide and ulterior motive. ( ix )Winding up petition can be filed only upon the existence of debt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he debts. ( ii )The object behind the petition of the petitioner is not primarily to misuse the provisions of the Act or in any way to recover his dues but to exercise the rights provided to him under the specific legislation and to stand at part with other creditors during the process of liquidation of the company so long as mobilization of dues are concerned. ( iii )Since the respondent-company is not an industrial company, as such the petitioner has no remedy under the Sick Industrial Companies (Special Provisions) Act, 1985. Further the petitioner, being an unsecured creditor, has no remedy under the Securitizations Act, 2002. ( iv )The intention of respondent-company is to divert the case from winding up proceedings to recovery p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reement reached on 4-6-1986, in regard to the repayment in the manner indicated, and it could not be said that the company s defences were untenable. The petitioner was bound to wait out the period of two years under the agreement and recover his dues. If there was unreasonable delay in the commencement of production, he was free to take legal steps to attach the assets of the company in order to secure repayment of his loan. 7. In Mediquip Systems (P.) Ltd. v. Proxima Medical System GMBH [2005] 7 SCC 42, the Apex Court indicated as under : "18. This court in a catena of decisions has held that an order under section 433( e ) of the Companies Act is discretionary. There must be a debt due and the company must be unable to pay the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce that the company has the ability to pay the debt but the company chooses not to pay that particular debt, see Re. A Company [94 SJ 369]. Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the Court will make a winding up order without requiring the creditor to quantify the debt precisely see Re. Tweeds Garages Ltd. [(1962) Ch 406]. The principles which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends." (p. 638) 9. The principles o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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