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TMI Blog2009 (12) TMI 522X X X X Extracts X X X X X X X X Extracts X X X X ..... ted unambiguously by the petitioner, once it became apparent that the respondent was unable to hand over possession of the Demised Premises within the stipulated time. It is within the discretion of the Company Court to entertain the company petition, even if there is an arbitration clause in the Agreement between the parties.Thus prima facie, that the claims raised by the respondent in reply to the legal notice are not within the domain of bona fide and substantial defences. In that view of the matter, let notice issue to the respondents to show cause why the company be not wound up, returnable for 4-5-2010. - CO. PETITION NO. 471 OF 2009 CO. APPLICATION NOS. 1553-1554 OF 2009 - - - Dated:- 22-12-2009 - SUDERSHAN KUMAR MISRA, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending Lessor by 31-12-2007, which would be extended in the case of force majeure circumstances and/or reasons beyond the control of the Intending Lessor. 3. The petitioner-company, as per its obligations under Clause 6 of the Agreement, paid the respondent a total sum of Rs. 4,97,991 vide Cheque Nos. 599742 and 412065, drawn on Citi Bank, Delhi towards an interest-free security deposit equivalent to three months rent. Part of this payment was made prior to the signing of the Agreement, and the balance was paid at the time of signing of the Agreement. The petitioner states that the second cheque was encashed on 2-1-2006, and that the said deposit was subject to compliance with the terms and conditions stipulated in the Agreement to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrol. Clause 2 of the Agreement to Lease is relied on by the respondent in support of the contention that the stipulated time to complete the project is extended on account of these force majeure circumstances and/or reasons beyond the control of the respondent. However, the respondent has not given any specific reasons in the reply dated 2-3-2009 in support of this contention. It is also claimed by the respondent that the construction is on in full swing, and is very nearly completed. Further, the respondent admits that the payment made by the petitioner towards the security deposit is a matter of record, and that after completion of the construction, will be utilized in obtaining a number of approvals from the concerned authorities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as further been held, in the same case, that : "Normally, the Company Judge considers it prudent in the first instance to issue notice to the respondent so that its defence to the possible far-reaching and fatal winding-up orders can be considered. The admission of the petition at its first hearing is possible because, by virtue of section 434 of the Companies Act, a presumption of the indebtness can be legitimately drawn by the Court where no reply to the statutory notice is forthcoming. The risk of the admission of the petition, as well as the appointment of a Provisional Liquidator is thus broodingly and ominously present in all those cases where the respondent company neglects to send any reply to the winding up notice. But this is as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated time. Further, in reply to the legal notice, the respondent has not denied the fact of the payment of the security deposit by the petitioner. 12. In Polaroid India (P.) Ltd. v. Nav Nirman Co. [2001] 105 Comp. Cas. 688 1 , the Bombay High Court admitted a winding up petition on the ground of non-payment of a security deposit in consideration of a leave and license agreement, despite termination of the same by a written notice. 13. The remedy of arbitration is not an alternative to the initiation of winding up proceedings. In Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. [1999] 22 SCL 156 (SC), it has been held, in paragraph 5 thereof: "The claim in a petition for winding up is not for money. The petition fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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