9911796707
TMI Blog2012 (11) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... entered into an agreement with the respondent for excavation of copper ore in the State of Madhya Pradesh. The respondent executed the work and, from time to time, submitted running bills, those were paid. The final bill that was raised, is appearing at page 17 of the paper book. We find from the billing summary, a sum of rupees twenty three crores thirty two lacs fifty six thousand seven hundred sixteen was billed for the cumulative value of work done by the respondent. After taking into account the running bills, a sum of rupees six crores twenty two lacs became due and payable which would come to six crores ninety eight lacs after adding the Service Tax and giving credit to the sums paid on that account, a sum of rupees one crore forty n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed to have certified removal of thirteen crores forty eight lacs cubic meter as per the joint measurement. Final bill was settled at rupees one crore thirty three lacs that was passed for payment. In such view, they prayed for payment within twenty one days with a caution that they would be moving the learned Company Judge having appropriate jurisdiction for winding up of the appellant company. The company did not reply to the notice of demand. Company filed an Affidavit-in-Opposition that would indicate no plausible reason to resist the order of winding up as pointed out by the learned Single Judge. The learned Judge found that the company only disputed the payability of the claim. His Lordship admitted the winding up petition and di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arantee for rupees one crore thirty four lacs. The company duly furnished such guarantee in favour of the Registrar, Original Side. We stayed the order of winding up. The appeals were heard on the above mentioned date. 3. Mr. Tilak Bose, learned senior counsel appearing for the appellant contended that the company was quite a solvent company as would appear from its balance sheet. It had a carry forward positive balance of rupees four hundred ninety crores. It had fifty one hundred manpower working in various establishments of the company being engaged in the field of copper. The learned Judge should have granted at least one extension to file affidavit to place it on record the worth of the company, particularly when none other than the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utes of the arbitration proceedings appearing at pages 72-77 of the paper book that would show that on the identical issue, the Chairman-cum-Managing Director appointed Arbitrator to adjudicate the disputes between the parties and the arbitration proceeding was going on. He informed us that the next date of arbitration was fixed on in August 2012 that too, at the instance of the learned counsel appearing for the respondent. 5. He prayed for setting aside of the order of admission so merged in the order of winding up coupled with a prayer for permanent stay of the winding up proceeding. Opposing the appeal, Mr. Supriyo Bose, learned counsel appearing for the respondent contended that the respondent excavated copper ore for which bills were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not have been wound up that too, at the instance of an unsecured creditor whose claim is yet to be adjudicated upon in a pending arbitration proceeding. 8. Mr. Supriyo Bose, learned counsel strenuously contended, the arbitration would relate to additional claims. We do not find any definite assertion on that score. From the photostat copies of the documents related to arbitration as submitted before us we would find that the claim in the arbitration would relate to excavation and removal of copper ore under the self-same agreement against which the petitioning creditor claimed rupees one crore thirty four lacs. From the reply submitted by the appellant we find that the respondent contended before the arbitrator that the final bill was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order the appellant already secured the entire claim through bank guarantee. We also permitted the respondent to withdraw the amount through encashment of bank guarantee by giving counter guarantee for the same. The Registrar would hold the same till disposal of the arbitration proceeding and would get it renewed from time to time. We thus hold that this is not a fit and proper case to wind up the appellant company. In this regard, we may refer to Clause (e) of the guideline so stipulated in the case of Kiranmayee Devi 49, CWN 246. "(e) If the defendant has no defence or the defence is illusory or sham practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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