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TMI Blog2015 (6) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... said bill, despite reminders the bills were not paid. Transporter issued a statutory notice of demand vide letter dated January 7, 2013 that the Company duly received. The Company neither paid the said sum nor replied to the statutory notice of demand that gave rise to the winding up proceeding initiated by the transporter being C.P. No. 349 of 2013. At the time of admission of the winding up proceeding, the Company appeared through advocate and contested the proceeding. The learned Counsel appearing for Nampa took the plea, subject bills were not received at all and the statutory notice was not served on the registered office. The learned Judge rejected the contention and admitted the winding up petition for the said sum of Rs. 88, 500. While rejecting the contention of the Company, His Lordship observed, the change of registered office was not in the knowledge of the transporter. In reply, the Company did not raise such plea. On merit, His Lordship was of the view, had the bills not been received the contemporaneous objection should have been raised in the correspondence exchanged between the parties. Hence, such belated objection was without any basis. His Lordship also negated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a could not be accepted. The above two appeals would relate to the order of admission and the order of winding up respectively. The Division Bench, while admitting the appeal, directed deposit of the principal amount and stayed the order of winding up upon such deposit being made. We are told, deposits were made, and we heard both the appeals of the above mentioned dates. CONTENTIONS: Mr. Sakya Sen learned Counsel appearing in support of the appeals, would raise the plea, the learned Company Judge could not have ignored the dispute raised on merit at the post admission stage. The learned Judge was duty bound to deal with the contentions raised on merit even at the post advertisement stage. To support his contention, he would rely on the following decisions: 1. Air wings Private Limited Vs. Viktoria Air Cargo Gumbh Langer Kornweg reported in All India Reporter 1995 Page- 69. 2. SRC Steel Limited Vs. Bharat Industrial Corporation Limited reported in 2005 Volume- IV Calcutta High Court Notes Page- 343. Per contra, Mr. Sailendra Jain learned Counsel appearing for the creditor would submit, it would be too late in the day to raise dispute on merit, the Company got the oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the other aspect particularly the issue of commercial insolvency and such recording, unless confronted before His Lordship, must be taken as sacrosanct. We thus conclude, the petition by a creditor would be maintainable on both counts. Once the creditor established his right to claim the amount more than Rs. 500/- the onus would shift on the company to rebut such claim by raising bona fide dispute. Once the bona fide dispute is raised it would weaken the chance to have admission of the winding up petition, otherwise admission is an obvious consequence. Even if we accept the view of His Lordship on the interpretation of section 434 (1) (a) we would not be in a position to agree with the ultimate finding as we find enough material to hold, the petition was maintainable in terms of sections 433 (e) and (f) read with sections 439 (1) (b) and 439 (2)." Often we mix up the remedy when a creditor sues the Company for unpaid debt. If it is a civil suit for recovery of the claim, the adjudication on the claim must be final before a decree is passed. However, a special statutory right is given to a creditor of a Company limited by shares and registered under the Companies Act, inter-al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Company, it is final between the Company and the creditor. In case the Company does not challenge the same higher up, such adjudication would only help the creditor to proceed further with his winding up proceeding. Once such adjudication is made and the petitions are admitted it takes the representative character upon public advertisement of the notice. Such public advertisement would bring all connected with the Company being its creditors, workers, share-holders, contributors and others whose interest would be in jeopardy in case the winding up order is made or not made. Even if we consider Rule 100 and 101 of the Company (Court) Rules 1959 we would find, the statutory rule would also permit others to carry on with the proceeding in case the original petitioning creditor was reluctant meaning thereby, at the post admission stage even if the petitioning creditor's claim is paid off privately, his exclusion from the proceeding would be of no consequence in case others would agree to carry the flag till the last. The Karnataka decision in the case of Air Wings (supra), would however permit the Company to raise dispute on the claim even at the post admission stage. We a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... procedure for a winding up proceeding. In our considered view, paragraph 22 and 23 of the said Karnataka decision could not be read in isolation. We would however, not be in a position to agree, even after a contested hearing there would still have room for further consideration on the adjudication of the claim of the creditor at the instance of the Company. Hence, in our view, the learned Judge was right in not going into the merits of the matter at the post admission stage. We have discussed the law on the subject as the same was raised by Mr. Sen. The facts would however, not in any way change the situation even if we hold otherwise. The creditor had a claim on four unpaid bills. Initially, the Company contended, they suffered loss because of mishandling of the consignment hence; they were not obliged to pay. The learned Counsel subsequently took the plea, bills were not received, the fourth bill was not at all payable as it was raised on Radha Strips. A third round of defence was sought to be raised at the post admission stage. The Company would contend, three bills had already been paid hence; there could be no claim at all. It is settled proposition of law; a claim, if bona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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