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TMI Blog2010 (2) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... ds the claim arising under the memorandum of understanding. In the circumstances, with the petitioner approaching the civil court for relief, have no hesitation in rejecting the plea of the petitioner that the company petition for winding up has to be ordered. The company petition is dismissed. It is open to the petitioner to exhaust the remedy available to them in a normal way other than taking recourse to winding up proceedings. - C.P. NO. 280 OF 2009 - - - Dated:- 12-2-2010 - MRS. CHITRA VENKATARAMAN, J. Bijes Thomas for the Petitioner. JUDGMENT 1. This petition under sections 433( e ) and ( f ), read with section 434(1)( a ) and (1)( c ) and section 439(1)( b ), of the Companies Act, 1956, has been filed for wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at Rs. 60,05,000. It was agreed that the said Murugadass would reconstitute the board of the respondent-company by persons of his choice and inform the bank about the resignation of the petitioner as well as P. Jaishankar from their directorship. On the resignation of the petitioner, two other persons by name A. Mohan and O.R. Suthandiradass were inducted as new directors. The memorandum of understanding dated 8-4-2009, was drawn, whereby the said Murugadass agreed to pay Rs. 16 lakhs to the petitioner herein towards refund of outside liabilities raised by the petitioner herein. The said amount should be paid within 90 days of the transfer of the shares, failing which, the petitioner would be at liberty to claim interest at 18 per cent pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Negotiable Instruments Act, 1881. 4. By letter dated 14-9-2009, the respondent, however, refuted the allegations calling upon the petitioner to comply with the commitments and avoid unnecessary unpleasant situation and to transfer the entire shareholding of the company to one A. Mohan. It was further stated that since the petitioner had finalised the debtors list for the year 2007-08 with the auditor and the balance sheet and as the audited books were not available in the office, the said Murugadass could not recover the debts from the debtors. 5. On 23-9-2009, the petitioner issued a statutory notice referring to the memorandum of understanding and submitted that based on the said memorandum of understanding, the company was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had not guaranteed any of the borrowings. Hence, there was no necessity of the respondent getting the no objection certificate. There was also a doubt as regards the claim of loans taken from private creditors and they appeared to be mere book entries and consequently, placing reliance on the conditions in the memorandum of understanding, the respondent took the stand that the petitioner is not entitled to get the sum of Rs. 16 lakhs. In the background, learned counsel appearing for the respondent submitted that this petition has to be dismissed. The respondent also pointed out to the suit filed by the petitioner before the II Assistant City Civil Court in O.S. No. 9339 of 2009 and sought for an interim injunction against the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. v. State of Gujarat [1975] 1 SCC 199, that when the document terms are clear and the conduct of the parties subsequent to the execution of the instrument clearly showed the admitted liability, the claim of the petitioner being one based on the admission from the respondent-company, the winding up petition has to be ordered, since the defence taken lacked in bona fides. He further referred to the decision of the Punjab and Haryana High Court in Sound Fibre v. B.K. Duplex Ltd. [2009] 95 SCL 14 , particularly to paragraph 13, wherein the Punjab and Haryana High Court pointed out that where a company forces a creditor to unviable ways of recovery of an admitted amount, the debtor company has no right to continue its operation and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner approaching the civil court for relief, I have no hesitation in rejecting the plea of the petitioner that the company petition for winding up has to be ordered. 11. As regards the reliance placed by learned counsel appearing for the petitioner on the decision in Godhra Electricity Co. Ltd. s case ( supra ), a reading of the said decision shows that by mutual agreement, the parties can make their own contract or remake them. The Court can get assistance from the conduct of the parties to ascertain the meaning that the parties give to the terms of the contract. The Apex Court pointed out that there is no good reason as to why the Court should not look into these further expressions by the parties "in view of the fact that they stil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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