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TMI Blog2010 (8) TMI 168X X X X Extracts X X X X X X X X Extracts X X X X ..... to file a suit in respect of the cause of action. The petitioning creditor will file a suit in respect of the above cause of action within a period of four weeks from the date of issuance of a copy of this order. The period during which this winding up application is pending will be excluded for the purpose of calculation of the period of limitation, under article 14 of the Limitation Act. If no bank guarantee is furnished as aforesaid, then the petitioner will be at liberty to apply before the court for immediate admission of the winding up petition and for issuance of advertisement. If the suit is not filed by the petitioning creditor, the company will be under no obligation to keep the bank guarantee alive. - C.P. NO. 156 OF 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioning creditor it is very plain that there was indeed short delivery of the said goods of the amount claimed. The only defence taken in that letter was that the amount which was refundable "was adjusted against goods supplied to Jagwani Projects Private Limited". There were no details of such goods or dates of supply and so on. Naturally, the petitioning creditor wrote back on 8-6-2007 saying "We have never authorised you to transfer the amount payable to us to M/s. Jagwani Projects Private Limited". 6. Now, at the time of hearing of this application the question arose as to such details. A supplementary affidavit was allowed by me to be filed by the company, so that the real controversy between the parties could come to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reference to the petitioning creditor. That letter is signed by one G.D. Jagwani. There is mention of the third and fourth indent. No connection between the subject consignment and the alleged indents mentioned in that letter is indicated far less established. Further, it is also not established that the balance goods were supplied by the company to Laxmi Global Company or Jagwani Projects Private Ltd., as alleged. No record of any despatch of the goods which were short, to Jagwani Project Private Limited or Laxmi Global Company or G.D. Jagwani is on record, far less the details of such supply. But, some connection between the petitioning creditor and Jagwani is indicated. 9. There is a line of cases which pronounce the principle that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranmoyee Dassi v. Dr. J. Chatterjee [1945] 49 Cal WN 246 at p. 253, Das, J., after a comprehensive review of authorities on the subject, stated the principles applicable to cases covered by Order 37, C.P.C. in the form of the following propositions (at page 253) : ( a )If the defendant satisfies the court that he has a good defence to the claim on its merits the plaintiff is not entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. ( b )If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the above judgment. The defence put forward, in my opinion, falls under ( d ) or ( e ) of that judgment. 13. Sub-paragraph ( e ) of that judgment says that even if the defendant has no defence still the court can show mercy to him or her by enabling him or her "to try to prove a defence" in a suit. 14. But the question is on what principles is the court to show mercy upon such defendant or company. 15. If in each and every case where a defendant or company had no defence the court had the power to show mercy by asking them to furnish security, then the circumstances in which the court, could exercise such discretion would vary from case to case and from judge to judge. There must be some principles on which the discretion und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e renewed from time to time, subject to the orders of the civil court where the petitioning creditor is to file a suit in respect of the cause of action. ( b )The petitioning creditor will file a suit in respect of the above cause of action within a period of four weeks from the date of issuance of a copy of this order. The period during which this winding up application is pending will be excluded for the purpose of calculation of the period of limitation, under article 14 of the Limitation Act. ( c )If no bank guarantee is furnished as aforesaid, then the petitioner will be at liberty to apply before the court for immediate admission of the winding up petition and for issuance of advertisement. ( d )If the suit is not filed by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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