TaxTMI 
TaxTMI 
2013 (1) TMI 54
X X X X Extracts X X X X
X X X X Extracts X X X X
....o sell its plant, machinery, vehicles and all other equipments arranged for the said project to the respondent at and for a sum of Rs.2,75,73,614/-. They accordingly agreed on terms for sale and prepared a schedule containing 47 items of plant and machinery and 18 vehicles including two-wheelers and four-wheelers and an agreement was entered into by the company to the said effect. The respondent paid a sum of Rs.5 lacs as first instalment. It was agreed that they would make payment of the purchase price at a monthly instalment of Rs.20 lacs except the last instalment. The instalments were payable on the 15th day of each English calendar month and default would attract interest at the rate of 12 per cent per annum. The company paid diverse s....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the case of M/s. Aero Traders Pvt. Ltd -VS- Ravinder Kumar Suri reported in All India Reporter 2005 Supreme Court Page-15 and in the case of IBA Health (India) Private Limited -VSInfo- Drive Systems Sdn. Bhd. reported in 2010 Volume-X Supreme Court Cases Page-553. Mr. Samrat Sen learned counsel appearing for the company contended, even if the company was unable to defend the claim upto the expectation of the learned Judge, the existence of the defence, even if considered as weak, could not by itself attract the order of admission of winding proceeding particularly when the company secured the claim. He referred to Section 434(1)(b) of the Companies Act, 1956 to say, once the claim was secured the winding petition would automatically fail. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Single Judge in the present case he would come under Clause (e) to attract an order for security and the learned Judge rightly directed security to be furnished. He lastly contended that the order was acted upon on March 7, 2012 when no appeal was filed. Subsequent appeal after the order having been acted upon was not maintainable. Mr. Ranjan Bachawat, learned counsel also appearing for the company relied on the decision in the case of Bharat Vegetable Products reported in Volume-22, Company Cases Page-62 to support his contention, whether the dispute of a debt was bona fide or not, could be decided giving waitage to the eventuality when company secured the claim. The learned Single Judge in the case of Bharat Vegetable Products (Supra) ob....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... up proceeding being brought by the creditor, no matter whether the claim was bona fide or not. In the instant case, statutory notice of demand was replied to by the company. The company put up a defence. Learned Judge was not satisfied, even then he wanted to give an opportunity to the company to show their bona fide. It is rather an extension of the benefit which the company could otherwise avail under the statutory provisions so discussed above. The company duly availed such benefit and secured the claim. The order reached finality being acted upon. The matter may be viewed from another angle. In a case where a litigant invokes the discretionary power of the learned Judge and the learned Judge uses such power in one way the litigant ca....