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TMI Blog2015 (3) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... pany. The claim is founded on the allegation that the company failed and neglected to pay to the petitioning creditor Rs. 35,66,203.00 (Rs.1,19,826.00 on account of license fee and maintenance charges, Rs. 26,96,319.00 on account of penalty and Rs. 7,50,058.00 on account of interest @ 18% p.a. from July 7, 2010 to December 31, 2011) together with further interest @ 18% p.a. thereon till actual payment. 2. By an order dated April 12, 2012, Hon'ble Sanjib Banerjee, J. while recording that the company was not represented even at the second call and no affidavit-in-opposition had been filed, admitted the company petition. It was observed that if the company pays off Rs. 28,16,145.00 together with interest thereon @ 8% p.a. from the date of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official liquidator will proceed to take possession of the assets of the company (in liquidation). The deposit has to be made with the Registrar, Original Side who will invest the same by way of a fixed deposit in any nationalised bank and retain the same free from all lien and encumbrances and subject to any further order that may be passed in the application. Affidavit-in-opposition be filed by December 14, 2012; reply thereto, if any, may be filed before the matter is taken up on December 18, 2012. Since the company was not represented earlier, once the deposit is made the company will be heard on the merits of the petitioning creditor's claim." 4. The said order requiring the deposit of the entire amount having been complied with, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties executed three separate agreements for leave and license in respect of a portion of the premises in question (godowns and a factory shed) for a period of three months and it is undisputed that the amount the company was liable to pay in terms of such agreements for its occupation of the premises in question for three months was duly paid. The dispute between the parties arose because of occupation of the said premises by the company beyond March 31, 2010. While it is the claim of the petitioning creditor that the company overstayed without authority of law and is, therefore, liable to bear penalty in terms of the relevant clauses in the three separate agreements, the claim of the company is completely at variance. According to the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m your Company w.e.f. 01/01/2010. We will ready our new factory shed at South 24 prgs. As early as possible on/or before 15/7/2010. Also we will be shifted our factory to that place on/or before 31st July, 2010. You are agreed with us that further agreement is not required for short period i.e. 01.04.2010 to 31/7/10. You will issue us bill time to time and adjusted our Security Deposit amount, when you will feel that our liabilities arise after the adjustment our security deposit amount that time please you intimate us by letter or fax. If we will leave/vacate before the required period which is mentioned herewith and if our security deposit money not adjusted with the rent please give us refund. Please you co-operate with us and oblige. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the company petition are concerned. 12. The decisions cited by Ms. Bhutoria, learned advocate for the company reported in [2013] 176 Comp. Cases 1 (S.C) : Raju Jhurami v. Germinda P. Ltd., [2010] 153 Comp. Cases 326 (Bom.) : E-City Media P. Ltd. v. Sadhrta Retail Ltd., [2001] 106 Comp. Cases 391 : Greenhills Exports (P) Ltd. v. Coffee Board, [2001] 103 Comp. Cases 992 : Gleason Works v. Punjab Tractors Ltd., and the unreported decisions of His Lordship dated February 7, 2007 and March 29, 2012, are authorities for the proposition that a case based on a claim for unascertained damages cannot be equated with debt and that a petition for winding up of a company is not maintainable where the amount claimed is not a debt but damages. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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