2011 (8) TMI 963

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....r to the Company from 2002. 2. On the date of the statutory notice dated 30-1-2010 there was allegedly due and owing by the Company to the petitioning creditor a sum of about Rs. 16.68 crores. No reply was made by the Company to the statutory notice. As on date the sum due and payable by the Company to the petitioning creditor is stated to be more than Rs. 17 crores. C.P. 383 of 2009 3. The petitioner in C.P. No. 383 of 2009 is M/s. G.S. Atwal & Co. (Engineers) P. Ltd. It is said that on or about 14-1-2007, the petitioning creditor advanced Rs. 50 lakhs to the company as Short Term Inter Corporate Deposit. On 19-11-2007, the petitioner advanced a further sum of Rs. 25 lakhs on the same terms. In repayment of the above debt, the company h....

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.... in the gross sale of poultry and poultry products in January, February and March 2008 compared with October, November, December 2007. 7. I was also shown by him a Memorandum of Understanding executed on 12-5-2008 between the petitioning creditor and the Company where some payment terms were agreed upon. Clause 10 of that agreement stated that performance of the Memorandum of Understanding was subject to "any Act of the Government on movement or ban of poultry products". It was said by relying on this clause in the Memorandum of Understanding that I should relieve the Company from winding up. These documents were relied upon from the application of the Company. (C.A. 763 of 2010) Proceedings & Orders 8. Before proceeding further let me n....

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....ke possession of all the books, assets and properties of the Company and the Company was to do business under the Provisional Liquidator. The application for appointment of Provisional Liquidator (C.A. 194 of 2010) was allowed. By the same order the winding up application was admitted and to be advertised once in "The Telegraph" and once in "Anandabazar Patrika." I am told that such advertisement has been duly made. 10. On 24-11-2010, an application (C.A. 763 of 2010) was moved on behalf of the Company. In that application I directed status quo regarding the running of the business to be maintained till 2-12-2010. By my order dated 12-1-2011, I directed all winding up applications which included a second one (C.P. 383 of 2009) to be listed....

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....quest of the learned Counsel for the Company the applications were adjourned to enable the Company to bring more amounts to satisfy the petitioning creditors. When the petitioning creditor was unable to bring further amounts the amount already paid by the petitioning creditors were permitted to be returned. Discussion 14. I am not at all satisfied with the contention made on behalf of the Company with regard to Clause 10. In my opinion, Clause 10 has no meaning whatsoever. In case of any Governmental action the agreement would stand terminated or performance would be suspended. It does not say that the petitioning creditor would not recall the loan thereafter. In fact, the statutory notice was issued much later on 30-1-2010. Therefore, th....