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TMI Blog2008 (2) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... for winding up as was preferred by the appellant, being not maintainable. There being no merit, the appeal is dismissed - O.S.A. NO. 382 OF 2006 - - - Dated:- 11-2-2008 - S.J. MUKHOPADHAYA AND M. VENUGOPAL, JJ. T.K. Seshadri for the Appellant. P.S. Raman for the Respondent. JUDGMENT S.J. Mukhopadhaya, J. - This appeal has been preferred by the Gujarat Industrial Investment Corporation Ltd. (hereinafter referred to as the Corporation ) against the order dated 22-12-2006, passed by learned company judge in C.P. No. 213 of 2001. By the said order, learned judge closed and rejected the company petition preferred by the appellant under sections 433( e ), ( f ), 434(1)( a ) and 439(1)( b ) of the Companies Act, 1956, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to secure the amount and, therefore, a statutory notice under section 434 of the Companies Act was issued on 28-6-2001, which was received by the company 29-6-2001, but having received no reply, a petition for winding up of the company was preferred. 4. The case of the appellant is that the financial status of the company is not good; it is not in a position to pay back its dues. The debt has been admitted by them and, thereby, prayed for winding up. 5. Learned judge noticed other facts as brought on record that a suit, C.S. No. 577 of 1999, was filed by the appellant against the directors of the company in the City Civil Court, Ahmedabad for a judgment and decree of a sum of Rs. 7,75,64,563 together with interest thereon at 36 per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has already deposited a sum of Rs. 7.50 crores and the suit is pending. 6. Similar plea has been taken by the parties before this Court. While according to learned senior counsel for the appellant, there is no dispute relating to liability of debt amount, as the company is unable to pay the total debt. On the other hand, according to learned senior counsel for the company, the admitted liability has been paid and dispute, if any, relates to pendente lite interest, which is pending for determination before the City Civil Court, Ahmedabad. There being bona fide dispute with regard to interest, the petition for winding up was uncalled for. Both the parties relied on almost same judgments rendered by the Supreme Court or this Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35 Comp. Cas. 456 , the Supreme Court held that a winding up petition is not a legitimate means of seeking to enforce payment of a debt, which is bona fide disputed by the company. A petition presented ostensibly for a winding up order, but really to exercise pressure will be dismissed and in the circumstances may be stigmatised as a scandalous abuse of process of the Court. 13. Similar was the view expressed by the Supreme Court in the case of Mediquip Systems (P.) Ltd. v. Proxima Medical System GmbH [2005] 124 Comp. Cas. 473 1 . 14. In the present case, as evident from the pleading made by the parties and the facts noticed by learned judge, the respondent-company is running smoothly and earning profit. Its sale had gone up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit before the City Civil Court, Ahmedabad. Thus, there is a genuine dispute of interest, particularly with regard to pendente lite interest, which has to be determined in the suit aforesaid. 16. From the records it will be evident that even before this Court the company gave a better offer in favour of the appellant-corporation to settle the dispute, but the corporation did not choose to accept the same. Thereby, it will be evident that the company is in a position to pay the debts and whatever amount not agreed upon is a disputed amount between the parties. 17. In the aforesaid background, we hold that the learned judge rightly dismissed the petition for winding up as was preferred by the appellant, being not maintainable. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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