TMI Blog2013 (8) TMI 1194X X X X Extracts X X X X X X X X Extracts X X X X ..... ubsequently acquired as a going concern by the petitioning creditor by taking over the business, assets and goodwill of the said Partnership Firm. An agreement was also executed between the said Partnership Firm and the petitioning creditor for realisation of all its debts. 2. According to the petitioning creditor, after executing the work as entrusted under the said Letter of Intent, the invoices were raised from time to time and payments were also released by the company leaving a balance of Rs. 45,11,691/-which includes tax deducted at source for which the certificate was not issued. Admittedly, a statutory notice was earlier given by the petitioning creditor and subsequently a winding up petition was filed before this Court which gave rise to the registration of C.P. No. 114 of 2012. The company was permitted to file affidavit-in-opposition and after completion of the affidavits, the matter was finally taken up on 6th July, 2012. It appears that the petitioning creditor discloses two sets of Memorandum of Association first of which contains the principal object as "To take over / acquire the business, trade name and goodwill of the partnership firm ULTIMATE SOLUTIONS situ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that Clause-10 of the Letter of Intent does not provide the annexation of UTAs and ATPs certificates and, therefore, the defence of the company that unless those certificates are annexed to the invoices, the payment could not be released, is afterthought and contrary to the terms and conditions of the contract. Mr. Basak, learned Counsel appearing for the company, at the very outset took a preliminary objection to the maintainability of the winding up petition as according to him, upon the permanent stay of the earlier winding up petition, the subsequent winding up petition cannot be maintained on the selfsame facts and cause of action. He, further, submits that once the matter has been finally determined and the order is not set aside, the subsequent proceeding on the same issue is barred by the principles of res judicata and placed reliance upon a judgement of the Apex Court in case of Kalinga Mining Corpn. v. Union of India [2013] 5 SCC 252. In support of the contention that if there is a patent mistake which does not require any long drawn process of reasoning on the points, may be taken as the mistake apparent on the record but if something more is required to be done the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Mohanlal Goenka v. Benoy Kishna Mukherjee held as under: (AIR p. 72. para 23) 23. There is ample authority for the proposition that, even an erroneous decision on a question of law operates as 'res judicata' between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as 'res judicata'. This Court also held that : 14….. A wrong decision by a court having jurisdiction is as much binding between the parties as a right one and may be superseded only by appeals to higher tribunals or other procedure like review which the law provides." [See State of W.B. Hemant Kumar Bhattacharjee. (AIR p.1066, para 14.) 43 In view of the aforesaid clear enunciation of the law by this Court, it would appear that even if the judgment dated 2-7-2001 rendered by the High Court in OJC No. 11537 of 1999 and the dismissal in limine of SLP (C) No.13556 of 2001 arising from the aforesaid judgment is considered to be erroneous in view of the judgement in Saligram case, the matter regarding the locus standi of the LRs of Respondent 10 to proceed with a mining lease application cannot be per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h set aside the observation of the Hon'ble Single Bench by which doubts were raised as to the entitlement of the petitioning creditor to claim an amount on behalf of the Partnership Firm and declare that the petitioning creditor has a right to initiate another winding up proceeding as a lawful claimant. 9. The learned Counsel appearing for the company was very much vocal in contending that since the order of the Hon'ble Single Bench was not upset or set aside by the Division Bench, the issue involved in this proceeding shall be deemed to have been finally determined and, therefore, the principles of res judicata would apply. To my mind, if such proposition is accepted, it would run counter to the observations of the Division Bench. The Division Bench has specifically observed that the petitioning creditor's right as a lawful claimant to initiate another winding up proceeding cannot be foreclosed in terms of the observation of the Hon'ble Single Judge and ultimately set aside such observations. This Court, therefore, does not find that the principles of res judicata would be attracted in the special facts of this case. 10. Reverting back to the merit of the claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioning creditor. Lastly, the company says that they have not received the payment from the Hewlett Packard and, therefore, could not be liable to make the payments to the petitioning creditor. The aforesaid submission cannot be expected if the petitioning creditor have successfully and satisfactorily done a job and have raised invoices. This Court, therefore, finds that the winding up petition is very much maintainable. There is no bone fide defence put forth by the company. The winding up petition is, thus, admitted for a principal sum of Rs. 45,11,691/-together with an interest at the rate of 6 % per annum from date of statutory notice till payment. 12. The company is directed to make the payment within ten weeks from date. If the payment is made within the period as indicated above, this company petition shall remain permanently stayed. 13. In default, the petition will be advertised once in "The Stateman" and once in "Bartaman". The advertisements should indicate that the matter will appear before Court after expiry of four weeks from the date of the publications being made. Publication in the Official Gazette will stand dispensed with. 14. In view of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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