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TMI Blog2012 (11) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... d order has come to be passed. 4. This small and cryptic order is appealed against by the respondent - Company complaining that it can have very serious repercussions on the respondent-Company; that the admission of the Company Petition is one without considering the material on record placed by the respondent before the Company Court; that it is in ignorance of the serious and tenable defence raised in the objection statement filed on behalf of the Company; that the learned Company Judge has not taken into account the very sound financial position of the Company; that it is in ignorance of the fact that the company is a profit making, ongoing company; that the Company petitioner had no locus to present the petition under the provisions of Sec. 433(e) and (f) of the Act for the reason that Company was not even a debtor vis-a-vis the Company petitioner; that the very fact that amounts were claimed as remuneration and allowance payable to a Director after the company petitioner has seized to be a Director of the Company on and after 12-8-2005 by his own act of resignation has not at all been considered by the learned Company Judge; that the order suffers from the vice of being a non ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eing convinced about the desirability of admitting the Company Petition, an order for admission has been passed, but it is not followed by ordering for advertisement, that it is only when an order for advertisement is passed, it can affect the interest of the respondent - Company in the Company Petition and for such purposes, an enquiry is desirable and can be held also; and therefore, the appeal is not merely premature, but not tenable in law and has prayed for dismissing the appeal on the very preliminary objection. 8. Mr. Chaitanya Hegde, has also placed reliance on two other authorities, namely (head note 'C') in the case of Marketing & Advertising Associates (P.) Ltd. v. Telerad (P.) Ltd. [1969] 39 Comp. Cas. 436 (Bom.) in the case of Metro Malleable Manufacturers (P.) Ltd. v. Canara Bank [1981] 51 Comp. Cas. 616 (Kar.) and also has drawn our attention to the judgment of the Supreme Court in Government of Karnataka v. Gowramma [2008] AIR SC 863 to submit that even the judgment of the Supreme Court is a precedent only for the ratio of the case and not for any and every observation made in the course of the judgment and therefore submission is that the judgment of the Supreme C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (e), (f) and 439 of the Act, should be a reasoned order. In our opinion also even an order for admission requires to reveal the reasons for admitting the company petitions, as it can be made subject matter of an appeal under Sec. 483 of the Act, for the reason that the Division Bench of this Court has already understood the judgment of the Supreme Court in such a manner and it is not open for us nor is it proper to re-understand the judgment of the Supreme Court, as is canvassed by the learned Counsel for the respondent, in the wake of the earlier Judgment of the Division Bench of this Court. 12. Perusal of the observations and findings of the Division Bench as contained in para 16, leaves us with no doubt or any ambiguity to decide as to whether this can be an authority or not, as in the earlier judgment, the Division Bench of this Court has understood the judgment of the Supreme Court in Pradeshiya Industrial and Investment Corpn. of U.P. (supra) as an authority as indicated in Para 16 of the Judgment which reads as under: 16. The latest Judgment of the Supreme Court to which our attention was invited by the Learned Counsel for the Parties is rendered in the case of the Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being plainly and commercially insolvent, it has to be shown the assets of the Company are such and make it reasonably certain, and from which Court feels satisfied that the existing and probable assets would be insufficient to meet the existing liabilities. Reliance was then placed on the observations of the Supreme Court in AIR 1971 SC 2600, supra and then the following pertinent observations were made in paragraph 32: "it is beyond dispute that the machinery for winding-up will not be allowed to be utilized merely as a means for realising its debts due from a Company". In para 33 reasons are given by the Supreme Court for not approving the order or the High court admitting the Petition. It was noted by the Supreme Court that the Petitioning creditor was not a creditor. The appellant was not a debtor because it was a financial institution for an amount which is agreed to be subscribed. Neither the learned Single Judge nor the Division Bench had decided this important question whether there is a debt and the company has either neglected or was unable to pay. It was also observed that there was no definiteness of the debt as the matter was pending adjudication in arbitration. In v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the Company was commercially solvent or not has to be undertaken even prior to admission of such winding-up Petition under Section 433(e) of the Act. That very exercise was undertaken by the Supreme Court on the material on record and it was found that as the Company was not in such a financial doldrums, it was not a fit case for admission of winding up Petition against such Company under Section 433(e) of the Act. It must, therefore, be held that such consideration on admission stage of the Petition is not only not foreign to the scope of such enquiry but also, it is a part and parcel of such enquiry as authoritatively ruled by the Supreme Court in this Decision. 13. It is therefore, we have to not only accept the view as reflected and understood by an earlier Division Bench of this Court in the case of Airwings (P.) Ltd. (supra) for the purpose of understanding the judgment of the Supreme Court in Pradeshiya Industrial & Investment Corpn. of U.P. (supra), but are also compelled to take the view that in the wake of this understanding about the judgment of the Supreme Court, the view taken by this Court in the case of Miland Exports (P.) Ltd. (supra), cannot be considered as an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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