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TMI Blog2007 (6) TMI 286X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing order : "Hence, it would be proper at this stage for me to direct the company to pay to the petitioning-creditor the said sum of Rs. 10,00,000 along with interest from the date of granting such loan until the application is being filed before this court at the rate of 10 per cent per annum and further the interest will be calculated at the rate of 8 per cent per annum from the date of filing of this application till the date of the order and thereafter until the payments are being made by the company to the petitioning-creditor, the amount shall carry interest at the rate of 6 per cent per annum. Since the instalments have been prayed before me I direct that the company shall go on making payment at the rate of 2,00,000 per month along with interest thereon to be calculated as stated hereinabove on the reducing balance month by month to the petitioning-creditor. The first of such instalments to be paid on or before 1-8-2005 and thereafter on the first day of each succeeding month until the full payment is being made by the company to the petitioning-creditor. In default of payment of any one or the last instalment, the petitioning-creditor shall be at liberty to publish ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny amount paid towards TDS prior to the passing of the order dated 7-7-2005 and therefore, the appellant did not comply with the order passed by his Lordship by not paying the amount of Rs. 10 lakhs with interest at the specified rate by way of instalments as stipulated therein. ( h )A learned Single Judge by the order impugned herein has accepted the submission of the respondent that the payment by way of deduction of TDS under the provisions of the Income-tax Act could not be lawfully adjusted against the amount directed to be paid by the order dated 7-7-2005 and accordingly, dismissed the application filed by the appellant thereby holding that the order dated 7-7-2005, was not duly, complied with. 3. Being dissatisfied, the appellant has come up with the present Letters Patent appeal. 4. Mr. Jayanta Kumar Mitra, the learned senior advocate appearing on behalf of the appellant has made a threefold submission in support of this appeal. 5. Firstly, Mr. Mitra contends that the learned Single Judge erred in law in holding that deduction of interest by way of TDS cannot be adjusted towards the amount payable by the appellant pursuant to the conditional order disposing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds that no plea of adjustment is permissible if such adjustment is claimed on the basis of payment prior to the passing of the original order. Mr. Mitra in this connection by relying upon the provisions contained in Order 21 rule 2 of the Code of Civil Procedure contends that payment by way of TDS prior to the passing of the original order does not come within the purview of the said provision. According to Mr. Mitra, the order of the Company Court directing the debtor to pay off the admitted due amounts to a money decree, and in support of such contention, he relied upon the decisions of various courts in this regard. Mr. Mitra, therefore, prays for dismissal of the present appeal. 9. Mr. Jayanta Mitra, learned senior counsel appearing on behalf of the appellant in reply contends that the principles of Order 21 of the Code of Civil Procedure has no application in the facts of the present case inasmuch as if we read the order passed by P.C. Ghose, J., it will be clear that in default of payment of the amount fixed, his Lordship merely directed admission of the winding up application by giving advertisement in two newspapers. According to Mr. Mitra, the effect of the original or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tisement" amounted to a "virtual money decree" or whether such pre-decree payment can be adjusted against the decretal dues or not becomes academic and we do not intend to enter into such superfluous questions. 12. We, therefore, find no substance in the first contention raised by Mr. Mitra, learned senior counsel appearing on behalf of the appellant in the facts of the present case. 13. We now propose to conjointly deal with the second and the third contentions of the appellant as those are interlinked to some extent. 14. It appears from the materials on record that the appellant before making the payment of the first instalment gave details of the account and also indicated the proposed instalments and in such account, specifically claimed adjustment of the amount by way of TDS although such payments were made prior to the passing of the original order. It appears, that the respondent did not raise any objection and went on receiving the instalments as if they had no objection in the proposed payment by taking into consideration of the fact that "pre-order" payment by way of TDS was adjustable. Even if, at that stage, the respondent raised any objection refusing to ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Smt. Sudha Rani Debi AIR 1978 SC 537, wherein a suit for specific performance of contract for sale of property, the trial court granted a decree on condition that the plaintiff should deposit the balance consideration amount with a specified period and in default, the suit would stand dismissed. Subsequently, the plaintiff applied for extension of time and the trial court allowed such prayer by extending the time for deposit of the consideration amount. The defendant initially did not prefer any appeal against the original decree but actually filed the appeal after the court extended the time for deposit of the consideration money and contended that by extension of time, the original decree was amended by way of review and therefore, her appeal should be held to be filed against the amended decree and within the period of limitation and no application for condonation of delay was required to be filed as the date of decree should be treated to be that of the amended decree. The Supreme Court, however, negatived such contention by making the following observations in paragraph 4 of the judgment: ". . . Similarly, it is also not possible to entertain the contention that the orders ..... X X X X Extracts X X X X X X X X Extracts X X X X
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