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TMI Blog2010 (7) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly converted into a Public Limited Company by deleting the word "Private" from its name. The name of the respondent-company was further changed to M/s. SGN Telecom Limited with effect from 18-4-2000. 2. The petitioner is a Government of India Undertaking duly registered under the Companies Act, 1956 (for short "the Act"). It is averred that the petitioner filed a suit for recovery of Rs. 16,52,957. The said suit was decreed on 11-3-2005 along with future interest at the rate of 20.25 per cent per annum from the date of decree till payment. It has been further pleaded by the petitioner that in the suit, the respondent-company was proceeded ex parte though the transporter M/s. East India Transport Agency contested the suit. The operative part of the decree dated 11-3-2005 reads as under : "This suit coming on this day for final disposal before Sri P.C. Dash, 2nd Addl. Civil Judge (SD) BBSR in the presence of Advocate Sri Indrajit Mohanty and Associates of the plaintiff and Advocate Sri Abhaya Kumar Satapathy and Associates for the defendant, it is ordered that the suit is decreed on contest against defendant No. 2 and ex parte against defendant No. 1 in the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g will be released within this month and the balance payment within three months positively as our banking operations have become smooth and terrorist threats have also almost ceased. In view of this, we request that the East India Transport Agency may not be dragged to IBA for recovery of the outstanding payment." Subsequently on 27-6-1994, vide Annexure P-19, the respondent-company promised part payment on receipt of payments from the Electricity Board and on 6-10-1994. A sum of Rs. 50,000 was paid to the petitioner as part payment. In fact, the respondents requested that they be allowed to open Letter of Credit in future with the undertaking by them that they may retain Rs. 50,000 from each Letter of Credit. 5. The petitioner has averred that it has served a statutory notice on 2-2-2008. The respondent-company sought negotiations which were held but on 18-9-2008, the petitioner received a letter from the respondent-company offering Rs. 4,47,586 as full and final settlement. Since the said amount was not acceptable to the petitioner, the present petition for winding up was filed. It is pleaded that the petitioner has made efforts to ascertain the immovable property of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the same transporter, i.e., M/s. East India Transport Co. Hence, it is for this reason that the petitioner is not producing copies of the material documents. As per books of account, there is a credit balance of Rs. 4,47,586 which the answering respondent- company has offered to pay as full and final settlement, provided that all the litigation by the petitioner-company is withdrawn. However, petitioner-company appears to be stuck to the decree passed by the civil court. Copy of communication addressed by the petitioner is attached as Annexure P-5. As per books of account of the answering respondent-company, a sum of Rs. 4,47,586 is due to the petitioner-company which the respondent is ready and willing to pay provided the petitioner withdraws all the litigation." 7. The respondent-company has attached its balance sheet as on 31-3-2009 to the effect that a sum of Rs. 4,47,586 is the only amount due and payable to the petitioner as per books of account of the respondent-company. No other document has been produced on the record. 8. The petitioner-company filed counter-affidavit dated 19-2-2010 and produced numerous communications from the respondent-company starting fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is joint and several against the company as well as the transporter. Such decree was passed on 11-3-2005, whereas the petition for winding up has been filed before this Court in May, 2009, i.e., after the expiry of three years. Therefore, such petition is beyond the period of limitation. Reliance is placed upon Single Bench judgment of Calcutta High Court in Rameswar Prosad Kejriwal Sons Ltd. v. Garodia Hardware Stores [2002] 108 Comp. Cas. 187 1 . It is further argued that the material supplied by the petitioner was defective which was returned. The evidence of return of goods is available with the transporter but without getting the documents from the transporter, the petitioner has sought to recover the amount from the respondent-company. The books of account shows liability of Rs. 4,47,586 and the said amount has been paid to the petitioner vide Demand Draft bearing No. 004071, dated 7-7-2010 on 8-7-2010 in the Court and, therefore, it cannot be said that the respondent-company is unable to pay its admitted liability. In fact, the entire amount is disputed. The respondent-company has four plots each measuring 1,000 sq. yards and, therefore, the respondent-company can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... covered by clause ( a ) but is covered by clause ( b ). He argues, the petitioner cannot take the benefit of clause ( b ) as it did not execute the judgment of the Delhi High Court. I am not impressed with this submission. It is well-settled that clause ( a ) is a general clause and applies to all sorts of debts including a judgment debt. It is true that in the case of a judgment debt, the creditor can take the benefit of clause ( b ). But that does not mean that he cannot take the benefit of clause ( a ) as both the clauses are not exclusive of each other. Similarly, if a creditor after serving notice on the company, obtains a decree against it, he can still take the benefit of clause ( a ) as, after the decree, neither the character of the creditor nor that of the debt is changed. In the above view, I am fortified by the following observations of a Division Bench of the Madras High Court in Seethai Mills Ltd. v. N. Perumalsamy [1980] 50 Comp. Cas. 422 , 424 : A creditor, who has instituted a suit and obtained a decree against the company, will still be a creditor of the company to whom money is due by the company. It may be that the original debt had merged in the decree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he creditor has a decree of a Court in his favour and the execution is returned unsatisfied in whole or in part, the company shall be deemed to be unable to pay its debt, does not mean that the effect of clause ( a ) is negatived in the case of a decree-holder creditor. The object of the two clauses is the same, that is to show that the company concerned is unable to pay its debts. Action can be taken under either of them. The objection of the learned counsel, therefore, has no justification." 15. In view of the above, I am of the opinion that it is not necessary for the petitioner to file execution and on being unsatisfied in the execution petition the petitioner could seek winding up of the respondent-company. 16. Another argument raised by learned counsel for the petitioner that the petition for winding up is barred by limitation, again does not merit any consideration. Though the learned Single Judge of Calcutta High Court has held that winding up petition in 2001 cannot be filed in respect of a debt which has crystallized in a decree of 1997 but the said judgment referred to by learned counsel for the respondent-company has been overruled by a larger Bench of Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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