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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 ..... ontents by sending an adequate response. The orders of admission and winding up had been obtained by the petitioning creditor keeping His Lordship in the dark about the existence of such a letter which, in the further opinion of this bench, clinches the issue for the company and against the petitioning creditor insofar as the merits of the company petition are concerned. The decisions cited by Ms. Bhutoria, learned advocate for the company reported in [2009 (11) TMI 508 - HIGH COURT OF BOMBAY] E-City Media P. Ltd. , [2001 (3) TMI 922 - HIGH COURT OF KARNATAKA] Greenhills Exports (P) Ltd. 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 u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 28,16,145.00 together with interest thereon @ 8% p.a. from the date of the statutory notice till the date of payment within a fortnight from date, the company petition would remain permanently stayed; in default, the company petition would be advertised in two daily newspapers with the indication of enlistment thereof as per such order. The company petition, post-advertisement, came up for consideration on October 12, 2012 before His Lord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 further order dated December 19, 2012 was passed by His Lordship ordering that the deposit having been made, the application for recall stands disposed of and the order of winding up dated October 12, 2012 is permanently stayed. 5. Since by the same order the company petition was released from the list by His Lordship on personal ground, the same was assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute 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 company, the petitioning creditor was approached on March 25, 2010 for executing three fresh agreements to be operative from April 1, 2010; that the company was informed by the petitioning creditor of there being no requirement for execution of fresh agreements and that oral agreements could be entered into on the same terms and conditions as agreed upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Thanking you, Yours faithfully, For: ARC Insulation Insulators Pvt. Ltd. (bold font, wherever used, in original) 10. The receipt of the aforesaid letter by the petitioning creditor has not been denied. It is equally undeniable that the said letter had not been disclosed by the petitioning creditor in its co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lls 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 the circumstances, the proper course is to relegate the petitioning creditor to a suit. 13. Mr. Bose referred to the decision of His Lordship reported in [2011] 164 Comp. Cases 364 (Cal) : ITC Ltd. v. Oberoi Mall (P.) Ltd., also cited by Ms. Bhutoria, for arguing that there is no statutory bar to entertain a c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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