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TMI Blog2013 (1) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... e company to secure the claim by way of a Bank Guarantee – Respondent furnished bank guarantee Issue:- Whether the Judge was right in relegating the parties to suit even after holding that the company could not demonstrate a bona fide defence Held that:- The statutory notice of demand was replied to by the company. The company put up a defence. Learned Judge was not satisfied, even then he wanted to give an opportunity to the company to show their bona fide. It is rather an extension of the benefit which the company could otherwise avail under the statutory provisions. The company duly availed such benefit and secured the claim. Any unsecured claim as soon as it is secured, would debar a winding up proceeding being brought by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment. It was agreed that they would make payment of the purchase price at a monthly instalment of Rs.20 lacs except the last instalment. The instalments were payable on the 15th day of each English calendar month and default would attract interest at the rate of 12 per cent per annum. The company paid diverse sums from time to time, aggregating to Rs.48 lacs and defaulted balance sum of Rs.2,27,73,614.41p that attracted an additional sum of Rs.64,28,359/- as and by way of interest up to March 31, 2011. The appellant issued a statutory notice of demand on April 14, 2011. The company replied to the same on May 16, 2011 being dealt with in a rejoinder by the appellant issued on June 8, 2011. The company denied its liability as according to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stence of the defence, even if considered as weak, could not by itself attract the order of admission of winding proceeding particularly when the company secured the claim. He referred to Section 434(1)(b) of the Companies Act, 1956 to say, once the claim was secured the winding petition would automatically fail. Mr. Sen contended, there was inordinate delay in furnishing No Objection Certificate . There were other disputes as pointed out by the company in their correspondence. The company could not use the vehicles and/or plant and machinery for a considerable period and had to hire those from outside. The company had a counter claim of Rs.5 crores an odd. The winding up petition was rightly dismissed and parties were rightly relegated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Bharat Vegetable Products reported in Volume-22, Company Cases Page-62 to support his contention, whether the dispute of a debt was bona fide or not, could be decided giving waitage to the eventuality when company secured the claim. The learned Single Judge in the case of Bharat Vegetable Products (Supra) observed as follows:- In deciding whether the debt is disputed bona fide, the offer of the company to furnish security for the full amount of the claim and its rejection should be taken into account as they are material evidence of the bona fides of the company. Citing the above passage Mr. Bachawat contended that the company secured the entire claim as per the desire of the learned Single Judge. Hence, the appeal could not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions so discussed above. The company duly availed such benefit and secured the claim. The order reached finality being acted upon. The matter may be viewed from another angle. In a case where a litigant invokes the discretionary power of the learned Judge and the learned Judge uses such power in one way the litigant cannot complain that it should have been other way round unless such exercise was so perverse that it would require correction by the Court of Appeal. Right to claim winding up as statutorily provided, is a discretionary remedy. Learned Single Judge exercised discretion in one way. If we independently consider the controversy we might exercise our discretion contrary to what was observed by the learned Single Judge. Being a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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