9911796707
TMI Blog2012 (11) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... er. It is yet to be disposed of finally. The appeals were heard by us on the abovementioned dates. If we bring the facts in a short campus, it would be as follows: Facts would depict, the parties entered into a financial arrangement by which the appellants being constituent of the respondent Bank used to enjoy credit facilities against the cheques being deposited in the Bank without waiting for their clearance. As per the arrangement the moment cheques were deposited, Bank would be allowing them to enjoy the amount covered by the cheques and would credit the account by adjustment as soon as the Bank would realize the amount from the drawee. According to the agreement, in case of dishonour of any cheque, the amount would be deposited by the constituent immediately on the next day. The subject matter involved herein would show, both the companies under the same management deposited several cheques worth Rs.8 crores in Vikash Metal and Power Limited and Rs.10.8 crores in Sahyogi Distributors Limited. Needless to say, all the cheques were dishonoured. By the time the cheques were placed and got dishonoured the constituent availed the amount covered by the said cheques. In this backd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VIII Supreme Court Cases page-110. 2. IBA Health (India) Pvt. Ltd. Vs. Info-Drive Systems SDN. BHD. reported in 2010 Volume-X Supreme Court Cases page-553. 3. Amalgamated Commercial Traders (P) Ltd. reported in 1965 Company Cases Volume-XXXV page-456. 4. Mediquip Systems (P) Ltd. Vs. Proxima Medical Systems GMHB reported in 2005 Volume-VII Supreme Court Cases page-42. 5. M/s. Uniplas India Ltd. & Ors. Vs. State (Govt. of NCT of Delhi) & Anr. reported in All India Reporter 2001 Supreme Court page- 2625. 6. Suresh Nanda Vs. C.B.I. reported in 2008 All India Reporter Supreme Court Weekly page-898. He lastly referred to civil suit filed by the companies in this Court being C.S. No. 57 of 2012 wherein the companies were successful in getting an interim order as against the Bank appearing at page-97A of the paper book. The said order was time to time continued. Per contra, Mr. Joy Saha, learned counsel for the Bank took us to the correspondence exchanged between the parties. Page-107 would show, the appellants themselves wanted to buy time by giving proposal to clear off the dues in phases. He would refer to page 109- 110 wherein the appellants unequivocally admitted their debt an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt. He cited two decisions in the case of Techno Metal India (P.) Ltd. Vs. Prem Nath Anand reported in Volume-43 Company Cases page-556 and in the case of Bharat Overseas Bank Ltd. Vs. Shree Arcee Steels P. Ltd. reported in Volume 58 Company Cases page-174 to contend, even a secured creditor could file winding up petition without giving up its security. Mr. Saha relied on a decision in the case of Pandam Tea Co. Ltd. Vs. Darjeeling Commercial Co. Ltd. reported in Volume-47 Company Cases page-14 to contend, it was the content and not the form of the notice that would make the winding up proceeding maintainable. Replying to the submissions made by Mr. Saha, Mr. Bandopadhyay drew our attention to the definition of "debt" as defined in Section 2(g) of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 wherein any money payable to the Bank would be termed as "debt" within the meaning of the said Act of 1993. Hence, it would come under the mischief of SARFAESI Act particularly Section 2(ha) and Section 13(2) thereof. Mr. Bandopadhyay contended, the conduct of the parties would depict, the Bank was interested in collecting the security to the claim to protect its int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P) Ltd. (supra) the Apex Court once again dealt with winding up proceeding on a debt that was bona fide disputed by the company. Similar was the case before the Apex Court in IBA Health (India) Pvt. Ltd. (supra). Our former Chief Justice once again cautioned about malicious winding up proceeding that was based on a bona fide disputed debt. All the four decisions would consistently hold, a claim, if bona fide disputed by the company, would automatically resist a winding up proceeding. Hence, to admit a winding petition, the Court has come to a conclusion that the claim was quantified and the company failed to dispute the same. Once the test is positive, the order of admission would follow as a consequence. Thus at the end of the day the law as we understand is, a creditor can maintain a winding up petition if he complies with the provisions of Sections 433, 434 and 439 of the said Act of 1956. In the present case, the respondent-Bank was admittedly a creditor of the company. The company did not dispute such relationship. The company did not dispute receipt of the notice, hence, the winding up petition was maintainable. We are unable to agree with Mr. Bandopadhyay when he says, B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or unconditionally or (c) make any interim order that it thinks fit or (d) make an order for winding up the company with or without cost or any other order that it thinks fit. The combined effect of these four options would give wide power to the Company Court to pass any order that would be beneficial to the company as also the creditor. Section 443 would arm the learned Company Judge to postpone the process of winding up by testing the substratum of the Company and its sincere intention to clear off its just debt. Hence, the learned Judge did not commit any illegality in directing payment. If we give a close look to the order particularly the operative portion, we would find, the learned Judge admitted the winding up petition for the exact amount that was found to be due and payable by the company to the creditor and asked the company to make payment of the said sum together with interest at that rate of 10% per annum on and from a date that would commensurate with the date of dishonour of relevant cheques along with costs as a condition precedent to stall the advertisement process that would make the winding up petition a representative one. In case the company would pay the am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear. We reject such contention. Lot was said on security. Mr. Saha, in course of his submission, informed us, the proposal to create equitable mortgage of immovable property did not materialise as the promoters did not execute any mortgage in favour of the Bank. Mr. Saha relied on a statement showing the LIC Policies that were sought to be submitted as collateral security appearing at page-120 that would hardly recover Rs.20-22 lacs whereas the principal claim on account of dishonoured cheques would be Rs.18.8 crores. We are unable to accept the contention of the appellant. Bank was a secured creditor. Even if the provisions of Debt Recovery Act or SARFAESI Act would empower the Bank to recover their dues through special mode prescribed therein that would not operate as a bar to apply for winding up. The provisions of Section 37 of the SARFAESI Act would make it clear. We do not find any scope of interference. The appeals thus fail and are hereby dismissed. There will be no order as to costs. We are told, the Bank already advertised the notice in newspaper and the winding up petition has already taken its representative character. Dismissal of these appeals would not preclude ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
