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TMI Blog2012 (9) TMI 1259X X X X Extracts X X X X X X X X Extracts X X X X ..... conveyed a flat at Picnic Garden for a sum of Rs. 48.4 lakhs paid through three account payee cheques for Rs. 5 lakhs, Rs. 25 lakhs and Rs. 18.4 lakhs respectively. Upon receipt of the entire consideration the respondent duly conveyed the flat in favour of the appellant through a registered deed of conveyance. The first cheque of Rs. 5 lakhs was honoured by its banker. It is contended by the respondent, on the request of the appellant two cheques of Rs. 25 lakhs and Rs. 18.4 lakhs were not presented in the bank for sometime as they were in financial difficulty. Ultimately, on presentation, those two cheques were dishonoured by the banker on January 10, 2011 and the cheques were returned on the next day. The respondent issued a notice of dem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he defence was not a bona fide one. Hence, this appeal before us. 2. At the stage of admission, we enquired whether the appellant was in a position to secure the claim. The answer was in the negative. Today at the hearing of the appeal, Mr. S. N. Mitra, learned senior counsel appearing for the appellant, reiterates on that score. On enquiry we come to know that the company, although a non-banking financial institution, does not have any asset except the office premises mentioned above, that too, mortgaged with the State Bank of India. Mr. Mitra also informs this court on instruction, they do not have sufficient funds in their bank account. On factual matrix, Mr. Mitra contends before us that the winding up petition was not maintainable in v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e winding up petition. According to her, the reliefs claimed in both the proceedings are distinct, although based on identical cause of action. According to her, in the suit the respondent claimed cancellation of a document whereas the winding up petition was based on presumption of insolvency as the company failed and neglected to make good the amount covered by the dishonoured cheques. 4. Mr. Mitra cites three decisions to support his contentions. Ms. Bhuteria distinguishes the same. In the case of Euro Containers v. Morepen Laboratories Ltd. [2007] 78 SCL 168 (HP), the Division Bench of the Himachal Pradesh High Court declined to interfere with the order of the learned single judge dismissing the winding up petition considering the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te raised by the company is bona fide and there is every likelihood that such claim could be effectively resisted by the company. Mere pendency of a civil suit on the self-same cause of action, in our view, would not ipso facto make a winding up petition not maintainable. In this regard we would refer to a decision in the case of Central Bank of India v. Sukhani Mining Engineering Industries (P.) Ltd. [1977] 47 Comp Cas 1. The learned single judge of the Patna High Court observed, there is no such provision, the reason being that a winding up proceeding is not merely for the benefit of the petitioner but of all shareholders, creditors or contributories of the company. Therefore, winding up proceedings could not be stayed merely because the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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