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TMI Blog2019 (7) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... ent or Defendant must be shown to have no tenable or plausible defence. Unless that defence is moonshine, an order could not be passed. A conditional order may be possible, but it is not inevitable. In the present case no conditional order was possible either. There is no manner of doubt that there is indeed an invocation of a pledge. Whether or not there is a realization pursuant to that pledge invocation is entirely immaterial. The Petitioner cannot possibly attempt to realize security, and then claim the whole of the amount and not just the shortfall is the debt due. If there was indeed a shortfall, then it will have to be examined whether Wazir Financial ever called upon Birla Cotsyn to furnish additional security. All these are disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich is annexed from page 17 of the Appeal paper-book. 3. We have perused the Petition and the record of the Appeal, Appeal memo and the impugned order. 4. Shortly stated, the facts were that Wazir Financial placed periodic Inter Corporate Deposits or ICDs with various companies, including Birla Cotsyn. It alleged that the amounts under four ICDs that it placed with Birla Cotsyn were not repaid. The Petition was restricted to two ICDs of ₹ 3 crores and ₹ 2 crores placed on 6th March 2012 and 7th May 2012 respectively. Birla Cotsyn issued three cheques towards interest due on the ICDs. These were dishonoured for insufficiency of funds. Wazir Financial took proceedings under Section 138 of the Negotiable Instrumen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undisputed (or indisputable) liquidated and ascertained debt due and payable to the petitioning creditor. 8. What the learned Single Judge, on a careful consideration of the rival contentions, held finally was that it would not be possible on this basis to ascertain how much Wazir Financial had actually recovered. Consequently it was not possible to hold there was a deemed debt or liquidated sum shown to be due. 9. We are in complete agreement with the observations of the learned Single Judge in paragraph 8. The proposition that he sets out is indeed well-settled and does not require reiteration. The company court is a court of discretion and of equity. The test, as the Supreme Court tells us in IBA Health (India) Pvt Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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