1986 (10) TMI 291

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.... Dass Seth and Ashok Jain for the Respondent. JUDGMENT R.N. Mittal, J.-This petition has been filed by the petitioner under section 433 of the Companies Act, 1956, for ordering winding up of the respondent company. It is stated in the petition that the petitioner filed a suit for recovery of Rs. 3,20,138.67 against the respondent. A compromise was arrived at between the parties therein ac....

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....ur of the petitioner. During the pendency of the petition, the respondent paid an amount of Rs. 1,25,000. Thus, it paid in all Rs. 1,47,072. Learned counsel for the respondent has contended that the amount of Rs.3,20,138.67 claimed by the petitioner was by way of penalty and that consequently, he could not recover that amount. He could recover only Rs. 1,47,072 which has already been paid to....

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....led that section 74 is applicable to compromise decrees. Mulla, in his well-known treatise on the Indian Contract and Specific Relief Acts, 9th edition, page 577, dealt with this matter as follows : "Accordingly, a conventional larger sum agreed upon as payable in the event of failure to pay a smaller sum, or in such an event among others, is treated as penal only." I am fortified in the abo....

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....entire sum of money claimed in the plaint from the judgment-debtor. It was observed therein that the provision for the payment of the amount claimed by the decree-holder in the plaint, if there was default in the payment of any one of the instalments payable under the consent decree, was clearly in the nature of a penalty and the executing court had power to relieve the judgment-debtor of it. I am....