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TMI Blog2017 (4) TMI 1600X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudication on merits. Though creditors' petitions are carried to a company Court for the realisation of their debts, yet the realisation of the debt of a particular creditor is only incidental to a creditor's petition for winding up a company - However, as long as a petitioner claims that there is a debt due, demonstrates the service of a statutory notice on the company and asserts that the debt has not been discharged or secured or compounded for within three weeks of the receipt of such notice by the company, an adjudication on merits is called for. That a bank or financial institution has launched proceedings under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 is not, by itself, a b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company is unable to pay its debts but having regard to the fact for the selfsame issue the petitioner has already approached the Debts Recovery Tribunal for adjudication of the debts. This Court is not unmindful of the fact that the remedy in winding up before the Debts Recovery Tribunal are different and a secured creditor can also file an application for winding up on account of inability to pay the debts, but having regard to the fact that the defence to the claim is being considered by the Debts Recovery Tribunal and that is a special forum constituted to adjudicate the debts of like nature, I am not inclined to exercise my discretion in favour of admitting the winding up petition. It is made clear that this Court has not gone i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two stages in this Court in accordance with the practice recognised in 56 CWN 29 (Bharat Vegetables), the receiving stage is the stage upto the admission and the post-admission or post-advertisement stage is the final stage. Traditionally, the debt and the extent of the debt are assessed before a petition is admitted and the desirability of sending the company into liquidation is considered at the final stage. 5. In this case, the company petition was rejected at the ad interim stage of the receiving stage of the matter. 6. It is open to a plaintiff who has already filed a suit for realisation of a debt to institute a creditor's petition for winding up the company by citing the inability of the company to pay the same debt. That i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s may be the same, but the adjudication in the company proceedings would not be confined merely to discovering whether the debt was due or the extent thereof, but also whether it would be desirable for the company to be sent into liquidation. 8. There is no doubt that if a creditor knocking at the doors of the company Court is shown to have sufficient security in respect of the debt claimed to be due, the company Court may not find the company unable to pay its debts. To the extent that the appellant herein may have securities furnished in its favour by the company or by the principal debtor, such aspect of the matter has to be taken into consideration. But such consideration would arise only upon the company taking a stand in its affida ..... X X X X Extracts X X X X X X X X Extracts X X X X
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