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TMI Blog2018 (3) TMI 277X X X X Extracts X X X X X X X X Extracts X X X X ..... ondents against the loan advanced to these appellants by the respondents. In the facts, we find that the learned Single Judge exercised reasonable discretion. The view adopted by the learned Single Judge is probable one. We do not find any perversity in the view. There is no merit in the appeals. - Appeal (L) NO. 337 OF 2017 With Notice Of Motion (ST) NO. 1740 OF 2017 In Appeal (L) NO. 337 OF 2017 Alongwith Appeal (L) NO. 339 of 2017 Notice of Motion (ST) NO. 1744 OF 2017 In Appeal (L) NO. 339 OF 2017 - - - Dated:- 25-1-2018 - MR. NARESH H. PATIL AND MR. NITIN W. SAMBRE, JJ. Alongwith Appeal (L) NO. 338 OF 2017 with Notice Of Motion (ST) NO. 1742 OF 2017 In Appeal (L) NO. 338 OF 2017 Alongwith Appeal (L) NO. 336 OF 2017 with Notice Of Motion (ST) NO. 1741 OF 2017 In Appeal (L) NO.336 OF 2017 For The Appellants : Ms. Jennifer Michael i/b. Anil D'Souza For The Respondents : Mr. Rohit Gupta a/w. Mr. Nikhil Rajani i/b. M/s. V. Deshpande co. ORAL ORDER (PER NARESH H. PATIL, J) Admit. Heard finally by consent of the parties. 2. The appellants challenge the order passed by learned Single Judge of this Court (Coram:A.S.Gadkari, J) in Company Petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty secured respondents would not be entitled to resort to proceedings under the provisions of Section 433 and 434 of the Companies Act. In the submissions of the Counsel a harmonious reading of the provisions of Section 434 (a) and (b) is required to be done which would advance the purpose and object of these provisions. This is necessary in view of the fact that winding up order is a harsh order against an ongoing company/business concern and in case the secured assets are at the disposal of the creditor to be enforced then in such a fact situation the creditor ought not to be permitted to file a company petition and the Courts in such a situation be very slow in entertaining the winding up petition. Learned Counsel placed reliance on the judgment in the case of Salem Stainless Steel Suppliers v/s. Sumeet Machines Ltd. 2000 (Bom.) 419 and referred to observations made by the Court in Paragraph 4 which reads as under: 4. That leaves the only other contention that in so far as the admitted amount is concerned, the company has failed to make payment or secure the Petitioner in an amount of ₹ 14,18,407. The amounts as claimed by the Petitioner in terms of the particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entitled to file a winding up petition. There is no restraint on exercise of power on secured creditor, neither any provisions of Sections 434, 439 puts an embargo on the secured creditor like the respondents herein in preferring winding up petition. 15. In support of the submission, the Counsel has referred to two judgments delivered by learned Single Judge of this Court (i) Canfin Homes Ltd. v/s. Lloyds Steel Industries Ltd. 2001 Company Cases (Bom.) page 53 wherein learned Single Judge of this Court has referred to observations of the Division Bench of this Court in the case of Bharat Overseas Bank Ltd. v/s. Shri Shree Arcee Steels pvt. Ltd. which reads as under: We are of the opinion that bearing in mind the clear provisions of the Companies Act and the principles which have been discussed in detail in the Madras High Court and the Calcutta High Court judgments above cited, the rejection of the petition in this case at the stage of admission was not at all justified. The petition was required to be admitted and advertised and it is at that stage that the court could go into the question as to whether the security is sufficient or not and exercise its discretion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the creditors. A similar view has been taken by a Division Bench of the Calcutta High Court in Techno Metal India (P.) Ltd. v. Prem Nath Anand 1973 (43) Com 556. In Bharat Overseas Bank Ltd. v. Shree Arcee Steels P. Ltd., a Division Bench of this Court followed these wellsettled principles by observing as follows: We are of the opinion that bearing in mind the clear provisions of the Companies Act and the principles which have been discussed in detail in the Madras High Court and the Calcutta High Court judgments above-cited, the rejection of the petition in this case at the stage of admission was not at all justified. The petition was required to be admitted and advertised and it is at that stage that the Court could go into the question as to whether the security is sufficient or not and exercise its discretion to accept the petitioning creditor's claims and request for winding up or to reject the same on judicial consideration. The judgment in Bharat Overseas Bank Ltd. does not lay down any principle to the contrary. In fact, the judgment of the Division Bench in Bharat Overseas Bank Ltd.'s case follows the consistent principle of law which has been laid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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