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TMI Blog2018 (9) TMI 1219X X X X Extracts X X X X X X X X Extracts X X X X ..... ns no worthwhile payment has been made to the petitioner. In opinion thereof the defence raised is not bonafide. There are no reasons given as to why the debt is not payable. Admit the present petition. The Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published accirdingly. - CO.PET. 297/2016 - - - Dated:- 10-9-2018 - MR. JAYANT NATH J. Petitioner Through: Mr. Manish Dhir, Adv. Respondent Through: Mr. Sandeep Khurana and Ms.Seemab Ali Farima, Advs. JAYANT NATH, J. (ORAL) 1. This petition is filed under section 433(e), 434(1) (a) and 439 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the petitioner could not assign its debt to a third party without the prior consent of the other party. He submits that petitioner No.1 has received its dues from petitioner No.2. Hence, the present winding up petition would not lie. (ii) Reliance is placed on arbitration agreement between the parties as contained in the agreement to state that the remedy available to the petitioner was to commence arbitration proceedings. Hence, the present winding up proceedings would not lie. (iii) He states that the present winding up petition was filed in 2016 and issue of limitation would arise. 4. I may first look at the first submission of learned counsel for the respondent. Clause 9 of the Distributorship Agreement reads as follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assignment of the contract. 6. As far as the plea of arbitration clause is concerned it is settled law that a plea for winding up of a company cannot be subject matter of an arbitration agreement. Any order of winding up operates in rem and an Arbitrator would not have any power to pass such an order. Hence, the arbitration clause does not debar filing of the present petition. Reference in this context may be had to the judgment of Booz Allen and Hamilton Inc. Vs. SBI Home Finance Ltd. and Ors., (2011)5 SCC 532 where the Supreme Court held as follows:- 35. The Arbitral Tribunals are private fora chosen voluntarily by the parties to the dispute, to adjudicate their disputes in place of courts and tribunals which are public for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enant enjoys statutory protection against eviction and only the specified courts are conferred jurisdiction to grant eviction or decide the disputes. 7. Regarding the plea of limitation, I may look at the acknowledgement which has been relied upon by learned counsel for the petitioner. On 8.1.2014 the respondent has written to the petitioner accepting outstanding liability of USD 423,749. Relevant communication reads as follows:- Dear Sir, This is in reference to the total outstanding payment to Everdigm, we hereby inform you that the total amount due is USD 423749.30. We were not able to release the above payment on time since our payments got stuck up with the customers (Flood Disaster) and still we are expecting to ge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is issued on 6.10.2014 where again a debt is admitted. 9. Hence, on 6.10.2014 respondents have acknowledged their debt. The winding up petition is filed in 2016 which would be within the period of limitation. 10. I may, at this stage, only note that learned counsel for the respondent has pointed out that the communication dated 6.10.2014 was written on the instructions of the petitioner. Reliance is placed on communication dated 28.8.2014 written by the petitioner to the respondent. Even if what has been pleaded is correct it does not take away the fact that on the instructions from the petitioner the respondent has admitted the dues. It is also an admitted fact that despite these communications no worthwhile payment has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... winding-up petition as a means of forcing the company to pay a bona fide disputed debt. 13. I, accordingly, admit the present petition. The Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers Statesman‟ (English) and Veer Arjun‟ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. 14. Petitioner shall deposit a sum ₹ 75,000/- towards cost of the publication with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the li ..... X X X X Extracts X X X X X X X X Extracts X X X X
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