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TMI Blog2019 (3) TMI 960X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd [2002 (10) TMI 696 - HIGH COURT OF DELHI] mere filing of a proceeding before the DRT would not negate the right of the banks to file a petition for winding up of the respondent company. Hence, in view of the dicta of the Division Bench filing a suit prior to filing of winding up petition may not be an impediment against the petitioner in filing the present petition. By the present petition what the Petitioner seeks is to wind up the Respondent Company. An opportunity should be given to the respondent company to prove its case before a civil court. However, it is necessary to secure the claim of the petitioner. The petitioner has claimed outstanding amount in the notice sent for a sum of ₹ 39,17,007/- which includes interest @ 12% per annum. There is some merit in the plea of the learned counsel for the respondent that the claim of interest is based on an alleged oral agreement between the parties and is not in any manner reflected in any written documents exchanged between the parties. Keeping in view the above facts the principal amount outstanding prima facie payable by the respondent is ₹ 17,57,000/-. Let the respondent deposit a sum of ₹ 20 lacs in co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion where an admission is said to be made that the payments were returned by cash payment. He also relies upon a communication addressed by the respondent to the Income Tax Department where they have acknowledged the dues of the petitioner. 3. Learned counsel for the respondent has, however, strenuously pleaded that the said amount is not payable. He relies upon orders of this court to plead that the entire culprit in this matter was the former Director Mr. R.P. Mittal who was ousted from the management of the Respondent company on 15.1.2009 in terms of the order dated 14.1.2009 of the Division Bench of this court. He states that these entries have been introduced by the said Mr. R.P. Mittal who has thereafter disappeared taking away the books of accounts and records. He submits that even for the Income Tax Returns the respondent had no option but to rely upon the records of the old management. He further states that new Management has not admitted any outstanding dues of the petitioner. He has relied upon averments to the said effect in the two affidavits filed, namely, in March 2018 and in October 2018. He also points out that the petitioner has also filed a suit for recov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner to service interest as suggested, on the contrary, it was Mr. R.P. Mittal, who created such fraudulent entries in the books of the Respondent Company, which could give some credibility to the loan story projected by the petitioner. That the account entries relied upon by the Petitioner is only a private collusive arrangement between Mr. R.P. Mittal and the Petitioner, to the detriment of the Respondent Company, upon which no reliance could be placed. 6. Hence, it has been pleaded that taking the money into account of the respondent company was an act devised by the former Director Mr.R.P.Mittal who has thereafter taken out the money from the account of the respondent company and transferred it back to the petitioner. It is manifest from a reading of this submission that the payment as made by the petitioner was originally received by the respondent company. 7. Similarly, on 13.8.2010 the respondent has written to the Income Tax Officer where again they have acknowledged the outstanding dues payable by various entities including the petitioner Green Transport Corporation. Against the said company a balance of ₹ 50,16,189/- is shown as a liability on 31.3.2008 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Institution after instituting a recovery proceeding by it under the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (hereinafter called `the RDB Act'). ..... 11. The court held as follows:- 30. Therefore, it cannot be said that RDB Act covers the field for winding up an insolvent company and, Therefore, the contentions of Mr. Tripathi are misconceived and are accordingly rejected. The contention that the petitioner could chose one of the remedies available in case where two or more than two remedies are available is applicable when the remedy provided for is one and the same but when two different remedies are provided for two different reliefs, in that event the plea of election of remedies is not applicable. We, Therefore, hold that the winding up court is concerned with the issue as to whether or not a company could be declared as commercially insolvent and, Therefore, comes within the ambit of provisions of Section 433 of the Companies Act. The Debt Recovery Tribunal does not have any jurisdiction to entertain any such application for winding up of a company whether the same is by any bank and/or other financial instituti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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