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TMI Blog2007 (9) TMI 414X X X X Extracts X X X X X X X X Extracts X X X X ..... ny additional affidavit or fresh affidavit, I am of the view that as the averments made remained uncontroverted including the fact and demand of ₹ 26,35,00,000. It appears that, ultimately the dispute as raised was not bona fide, the claim as such is also within the limitation. - C P. NO. 405 OF 2003 - - - Dated:- 20-9-2007 - ANOOP V. MOHTA, J. Shekar Shetye for the Applicant. JUDGMENT (ORAL JUDGMENT) Anoop V. Mohta, J . The petitioner-bank have invoked the provisions of sections 433 and 434 of the Companies Act, 1956, as in spite of the receipt and service of statutory notice dated October 17, 2002, exhibits "C" and "D" the respondent-company failed to make the payment of the amount due and payable to the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one Seranova India P. Ltd. By the deed of guarantee dated September 17, 2001, duly executed at Hyderabad, by the said company in favour of the petitioner for a sum of Rs. 33.26 crores, the company in consideration of the petitioner giving credit for accommodation or granting facilities to the said company or its subsidiary company by making, opening, continuing a loan/overdraft/cash credit account or by discounting/purchasing or negotiating bills with or without security and/or/in consideration of the bank opening and giving letters of credit and/or trust receipt facilities in favour of the said company provided that the liability of the company shall not exceed on the whole, a sum of Rs. 33,26,00,000 apart from and in addition to all in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated December 16, 2004, rejecting the said defence raised, i.e. , as the goods which are lying as security and therefore, there is no crystallised debt with the company. The petition should be, therefore, dismissed. Firstly, the claim amount of Rs. 26,35,00,000 is taken note of and even if the security by hypothecated goods are taken into consideration, the balance claim is sufficient to consider the prayer clauses as made in the petition. The non initiating of the proceedings against the principal debtor is no ground to dismiss the present company petition for winding up, pursuant to the deed of guarantee for the aforesaid appeal. The adjudication even if pending and/or not yet finalised, but in the facts and circumstances of the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndatory nature of rules 27 and 28. The procedure contemplated by rules 27, 28 and 29 cannot be permitted to be substituted by self-invented procedure of sending intimation about the admission of winding up petition to the company by the petitioning creditor. Such exercise of intimation is no service in the eye of law in the face of mandatory provisions of rules 27 and 28." Therefore, at this stage, having once accepted and waived the notice, the requirement of rule 28 is not necessary. In this background the facts and averments made in the petition remain uncontroverted. Even assume for a moment some defence was raised at the time of the petition but at this stage of time, the respondent-company ought to have submitted their defence as we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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