9911796707
TMI Blog2009 (7) TMI 1334X X X X Extracts X X X X X X X X Extracts X X X X ..... - (Rupees Three Crores Fifty lakhs only) by a particular date, and failure of the appellant to deposit that amount was to result in admission of the petition. The respondent has filed a Company Petition under Section 433 and 434 of the Companies Act seeking winding up of the appellant-company on the allegations that it is unable to pay its dues. The relevant facts are that an agreement was entered into between the parties dated 3.4.2008. Pursuant to that agreement certain premises were to be given on leave and licence by the respondent to the appellant. The period of licence was to commence from 1.5.2008. The licence was for a period of 60 months. But the period of first 36 months was treated as lock-in-period. Admittedly, this agreement is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was liable to pay to the respondent a sum equal to the amount of licence fee for balance period left of the Lock-in-period. The learned Single Judge has held that the sum mentioned in the clause 7 quoted above is payable by the Company to the respondent and he assumed that this is the amount of liquidated damages and he, in favour of the appellant, reduced the amount to ₹ 3,50,00,000/- and issued the directions accordingly. 4. We have heard the learned Counsel appearing for both the sides. In our opinion, reading clauses 5, 6 and 7 of the agreement which have been quoted above, it cannot be said that the only meaning that can be attached to clause 7 is that even if the agreement is terminated before the licence period has commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the agreement, it would have been appropriate for the learned Single Judge not to entertain the company petition and leave the parties to their remedy under the Civil Law. In our opinion, remedy of filing winding up petition cannot be allowed to be used in a case where it is possible to take different view than the one propounded by the petitioner. In our opinion, the learned Single Judge, therefore, was not justified in entertaining the petition. 5. In the result, therefore, the appeal succeeds and is allowed. The order dated 12.2.2009 passed in Company Petition no.898 of 2008 is set aside. That Company petition is dismissed. Appeal is disposed of. Notice of Motion no.1436 of 2009 is also disposed of. - - TaxTMI - TMITax - Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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