2010 (1) TMI 565

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.... Company for a sum of Rs. 83,07,021 which includes principal amount as on 31-3-2004 to the tune of Rs. 68,80,085 amount of tax deducted at source Rs. 2,58,736, interest at the rate of 20 per cent from 1-4-2004 to 31-1-2005 to the tune of Rs. 11,68,200. In Company Petition No. 12/2005 it has been averred that Rs. 33,08,836 is due to the petitioner Company from the respondent Company out of which towards principal amount due is Rs. 27,48,125 towards interest from 1-4-2005 to 15-2-2005 to the tune of Rs. 66,349 is due and towards further interest from 16-2-2005 till 30-7-2005 to the tune of Rs. 1,94,362 is due. In Company Petition No. 15/2005 the due amount to be recovered from the respondent Company by the petitioner Company is averred to be ....

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.... out the differences between the parties, it has also been stated that the respondent company has all the intentions to repay the undisputed amount of debts to its unsecured creditors in a phased manner. 7. Intervention application has been filed by Maikaal Fibres Shramik Sangathan, Bheelgaon in which it has been stated that the members of the intervenor Sangathan are employees of the company. They and the members of their family are dependent upon the company and if the company is wound they will starve as there are no prospect of employment in the neighbouring areas. 8. Heard learned counsel for the patties and perused the record. 9. It has been argued on behalf of the petitioner that the respondent company has not paid its dues ....

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....] 35 Comp. Cas. 456 , Kiran Sandhu v. Saraya Sugar Mills Ltd. [1998] 91 Comp. Cas. 146 , S. Palaniappan v. Tirupur Cotton Spg. & Wvg. Mills Ltd. [2003] 114 Comp. Cas. 288^1 (Mad.) and National Textiles Workers Union v. P.R. Ramakrishnan [1983] 53 Comp. Cas. 184. 11. In order to appreciate the controversy in its correct perspective it would be appropriate to firstly deal with the judgments on which reliance has been placed by the learned counsel for the parties. 12. In the case of Madhusudan Gordhandas & Co. (supra) the Supreme Court has observed that :- "Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt. Wher....

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....ers the company court to exercise powers while hearing a petition winding up. Sub-section (2) does empower the company court to refuse to make an order of winding up, if it is of an opinion that some other remedy is available to the petitioners and that they are acting unreasonably in seeking to have the company wound up instead of pursuing that other remedy." In Amalgamated Commercial Traders (P.) Ltd.'s case (supra ) the Supreme Court had held that it is well-settled that a winding petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the Company. A petition presented ostensibly for a winding up order really to exercise pressure will be dismissed and under circumstances may be stigmat....

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....nts the learned counsel for the respondent fairly accepted the liability of the respondent Company to pay the debts of the petitioner but opposed the relief claimed in the petition on the ground of availability of the alternative remedy to the petitioner for recovery of debts by approaching the civil court. The respondent company has failed to demonstrate as to in what way the amount claimed by the petitioner is disputed. It is also worthwhile to mention that even after lapse of long time no payment of the undisputed amount has been made by the respondent company. In the circumstances I do not find any defence much less a substantial one has been taken by the respondent so that it can be said that it is likely to succeed in point of law. No....