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TMI Blog2012 (11) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. The test is whether the company would be able to resist the same by disputing the claim bona fide. As in the present case number of letters written by the company admitting their liability that would foreclose the scope of the company to dispute the claim. The company from time to time suggested repayment proposals. The correspondence predominantly suggests, the claim was never disputed - unable to accept the contention of the appellant that bank is not 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, thus no scope of interference. As 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 the company to make any proposal for the payment before the learned Company Judge and in case such proposal is made the learned Company Judge would be at liberty to deal with the same. - A.P.O. No. 373, 374 of 2012 & C.P. No. 164 & 165 of 2012 - - - Dated:- 16-10-2012 - ASHIM KUMAR BANERJEE, AND SH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... earing for the appellants attacked the judgment and order impugned raising the following issues : (i) The agreement appearing at page-88 did not mention anywhere that the outstanding sum would have to be cleared immediately on the asking of the Bank. (ii) The sanction letter appearing at page-89 would provide for interest at the base rate plus 4.25% per annum that would clearly show, the Bank would be entitled to interest on expiry of one year period. Hence, the money would not become immediately payable. (iii) The company already offered collateral security to secure the claim. Hence, the Bank should fall back upon the security instead of pressing the claim through winding up petition. (iv) To make a winding up petition admissible, the creditor must have a quantified realizable debt against the company. Such prerequisite was absent in the present case. Elaborating his argument, Mr. Bandopadhyay referred to Section 433 and 434 of the Companies Act of 1956 as well as the relevant provisions of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred as SARFAESI Act ). According to him, any creditor having a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of an immovable property at Howrah never materialized as the appellants never created any mortgage in favour of the Bank. Resuming his argument on the next day, Mr. Saha contended, through inadvertence in the notice of demand, it was stated, the Bank purchased the cheque that was a bona fide mistake and in any event did not have any factual support. He further contended, the notice of demand was duly raised, indicating the fixed amount that was lent an advanced by the Bank through the mechanism of instant clearing. The company was supposed to meet such demand. Having failed to do so, the winding up petition was maintainable. To counter-act the argument advanced by Mr. Bandopadhyay on SARFAESI Act, Mr. Saha would contend, the said Act was a special Act suggesting a complete mode for realization of secured debt. The present claim of the Bank was an unsecured claim. The LIC Policies so submitted by the appellants would hardly cover Rs.20-22 lacs. Hence, the Bank could not be said to be a secured creditor within the meaning of the SARFAESI Act, 2002. In any event, Section 37 of the said Act of 2002 would specifically suggest, the provisions of the said Act of 2002 or the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk already proceeded under the Negotiable Instrument Act on the self-same cause of action. They were not entitled to proceed with winding up proceeding. He lastly contended, the learned Judge did not adjudicate the actual amount payable by the company. The order of admission was vague as it would direct payment of interest at a certain rate without a fixed amount being calculated on that count. Unless quantum was not adjudicated, there could not be any order of admission. Mr. Bandopadhyay referred to the judgment and order impugned to say, His Lordship did not decide to the Company s solvency. There was no finding that the company was insolvent. The process was only to recover the dues. The learned Judge directed, payment to be made that would be contrary to the provisions relevant to winding up of a company. We have considered the rival contentions. The decision in the case of Suresh Nanda (supra) was relied upon wherein the Apex Court held that the Passport Act being a special Act would prevail over the Section 104 of the Criminal Procedure Code being a general Act. The decision in the case of United Bank of India (supra) was cited to support the contention that SARFAESI Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, we are unable to hold, the Bank was a secured creditor. In any event, a secured creditor can also apply for winding up. His second contention is also not maintainable when he says, winding up petition was not maintainable in view of other proceedings being had. The proceeding under Section 138 of the Negotiable Instrument Act is a quasi criminal action that a drawee of a cheque is entitled to initiate against the drawer that would have penal consequence. The winding up proceeding is not for recovery of debt. We fully agree with Mr. Bandopadhyay on that score. A creditor, if could prove a just claim before the learned Company Judge, would make his winding up petition maintainable. His status as a just creditor was relevant to maintain a winding up proceeding. It would have no further consequence as the winding up Court could not be used as a process of debt collection. If a creditor makes a claim and informs the company that he would apply for winding up in case such demand is not made, the company would have two options, either to secure or compound or defend such action by disputing the claim bona fide. Once the company is successful on either score, the winding up petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein would be entitled to maintain his petition. The test is whether the company would be able to resist the same by disputing the claim bona fide. Coming to the factual matrix, we would find umpteen number of letters written by the company admitting their liability that would foreclose the scope of the company to dispute the claim. If we refer to page-107 onwards we would find, the company from time to time suggested repayment proposals. The correspondence predominantly suggests, the claim was never disputed. Some of the contents being apt are quoted below : (i) Letter dated December 27, 2011 : As discussed we confirm that by 6th of the next month i.e. 6th January, 2012. We will submit you the repayment programme after discussing the same with our debtors. We will provide you with security for the outstanding amount till its liquidation . (ii) Letter dated January 9, 2012 : while we appreciate and very much acknowledge we have a liability to you arose out of the cheque returned but hope you will appreciate in turn the present difficult situation we are passing .. ..providing you the repayment programme of our accepted liability . (iii) Letter dated January 10, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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