9911796707
TMI Blog2007 (11) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... 07 - S.J. MUKHOPADHAYA AND A.C. ARUMUGAPERUMAL ADITYAN, JJ. P.R. Seetharaman for the Appellant. T.K. Seshadri for the Respondent. JUDGMENT A.C. Arumugaperumal Adityan, J. - This appeal had arisen out of the order in C.P. No. 372 of 1997, on the file of the original side of this court. The appellant is the petitioner in C.P. No. 372 of 1997, which was filed under sections 433( e ) and ( f ) and 434 of the Companies Act, 1956, to wind up the respondent-company NEPC India Limited, 36, Wallaja Road, Chennai. 2. According to the appellant/petitioner the share capital of the respon-dent is Rs. 20 crores divided into 2 crores equity shares of Rs. 10 each and the issued share capital of the respondent is Rs. 16,19,37,000 divided into 1,61,93,700 equity shares of Rs. 10 each. The objects of the respondent are to generate, accumulate, distribute, supply electricity and other power for the purpose of light, heat, motive power and for all other purposes for which electricity and other energy can be employed. As per the purchase order dated 18-2-1994, the respondent placed an order upon the petitioner for certain quantities of fasteners. Between the period February ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g with possession of or creating any third party rights on or its assets and properties. Hence, the petition to wind up the respondent-company under the Companies Act and also to appoint a liquidator to take charge of the assets, affairs, books of account, records, documents, papers, vouchers, bills, etc., and also for interim injunction. 3. The respondent in their counter would state that only to harass the respondent the petition has been filed and the same is an abuse of process of law. The amount claimed in the notice is unjust and dishonest claim. The respondent is a pioneer in manufacturing wind turbine generators in Asia and is a running company owning assets and the assets far exceed the liabilities. On this ground also the petition is liable to be dismissed. There are about 2 lakhs shareholders in the respondent-company and about more than 500 employees are working in the respondent-company. The statutory notice required under law was not sent to the registered office of the respondent. The statutory notice dated 28-7-1997, sent by the petitioner to the respondent is not maintainable. The transaction between the petitioner and the respondent is under a running account ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would contend that after the dishonouring of the two cheques drawn by the respondent in favour of the appellant, the respondent had repaid the entire cheque amount and the amount payable was Rs. 62,67,688.49 only and there was a compromise entered into between the parties and under the compromise the respondent had agreed to pay a lump sum of Rs. 11,18,648.85 at the time of signing the memo of compromise and agreed to pay the balance amount of Rs. 51,49,039.64 in three equal monthly instalments of Rs. 3,67,788.55 commencing from March, 2001, and both the parties have signed in the memo of compromise and as per clause 6 of the memo of compromise, if the respondent is making any default in paying the instalments, he is liable to pay 24 per cent per annum interest from due dates. The grievance of the petitioner is that the learned Single Judge has failed to raise a proper issue for determination to the effect of compromise and failed to give a finding thereon, and also as to the non-issuance of proper statutory notice under section 434(1) ( a ) of the Companies Act and under rule 96 of the Companies (Court) Rules, 1959. 8. In the present case we are not inclined to deliberate at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the manner, mode and place of compliance had already been stipulated with meticulous care and detail in the order itself. The said decision was also not made to depend upon any contingencies, beyond the control of parties in the earlier proceedings." (p. 2792) 10. In Som Dutt v. Govind Ram AIR 2000 SC 1638, the Apex Court laid down as follows : ". . . It is not in dispute that the premises in question were in the occupation of Bishandas, the father of Govind Ram (respondent). By virtue of the compromise which was entered into in 1981 before the appellate court, the son of the tenant who was already in possession was allowed to continue for a period of 10 years. Even if there be a creation of tenancy, the compromise between the parties including Govind Ram was that Govind Ram would vacate the premises on 31-12-1990. It is on that basis that the compromise was arrived at and the order passed by the appellate court. Apart from anything else, Govind Ram is clearly estopped from filing any application objecting to the execution of the decree. On this ground alone, Govind Ram has to be non-suited." (p. 1639) 11. In Baksi Ram v. Brij Lal [1994] Suppl. (3) SCC 198, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
