2015 (5) TMI 798

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d on July 14, 2011. The parties agreed, the borrower would pay interest at the rate of 15.5% per annum. Adding interest, a sum of Rs. 4,12,98,703.81 became due and payable at the time of filing of the winding up petition. Tata also initiated proceedings under the Arbitration and Conciliation Act 1996 on the strength of the arbitration clause incorporated in the matrix contract. Maheswari contested the winding up proceeding that ultimately resulted in its admission. Being aggrieved, Maheswari preferred an appeal before the Division Bench. The Division Bench rejected the contention of Maheswari assailing the Order of admission, however, disposed of the appeal re-scheduling the repayment programme that would be as follows: i) Maheshwari would pay the dues of Tata as quantified and adjudicated by His Lordship by the order and judgment impugned by monthly installment of Rs. 10 lacs per month for one year commencing from April 10, 2013 and thereafter on the 10th day of the succeeding month. ii) For the next financial year (April to March) Maheshwari would pay Rs. 12.5 lakhs per month on the date fixed as above. iii) In the third financial year Maheshwari would pay Rs. 15 lakhs per mon....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....cio hence, the present application would not be maintainable. To support his contention he would rely upon four decisions: 1. Chandra Nath & another Vs. Sahadabia Kumarin reported in 52 Calcutta Weekly Notes Page-440. 2. Piyaratana Unnanse and another Vs. Wahareke Sonuttara Unnanse and others reported in 54 Calcutta Weekly Notes Page- 568. 3. Central Bank of India & Ors. Vs. Ashoke Kumar Bose reported in 1983 Volume-I Calcutta Law Journal Page-406. 4. Badri Prasad Vs. Bhartiya State Bank and others reported in 76 Company Cases Page-247. On merits, Mr. Bose would contend, the conduct of Maheswari was deplorable. They initially made payments for few months and then started defaulting. Ultimately they stopped paying since November, 2013 when Tata had to move the learned Company Judge for appointment of Provisional Liquidator, then Maheswari paid a sum of Rs. 30 lacs to clear off the arrears as on that date. Moreover, they were not regular in conducting their day to day affairs. The statutory returns were also not filed that the learned Company Judge noticed vide Order dated November 22, 2013, November 25, 2013 and November 28, 2013. The appeal against the Order of the learned Com....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d still be entitled to correct the same. iii) Volume-I Calcutta Law Journal Page-406 (Central Bank of India & Ors. Vs. Ashoke Kumar Bose) The Court decreed a mortgaged suit ex-parte and omitted to allow interest under Order XXXIV Rule 11. The decree holder prayed for amendment under Section 151 and/or Section 152. The Division Bench observed, the Court was not competent, the only remedy would lie in appeal. ii) 76 Company Cases Page-247 (Badri Prasad Vs. Bhartiya State Bank and others): The Single Bench of Allahabad High Court, while dealing with an application for revision, interpreted the provision under Order XX Rule 11(2) of the Code of Civil Procedure and observed, merely because the decree holder did not file any objection to the application, the revisionist would not get any right claiming payments of decreetal amount in installments. In the said case, the money decree did not provide any installment. The learned Judge observed, the judgment debtor was not entitled to pray for modification of said decree in view of the provisions of Order XX Rule 11(2) of the Code of Civil Procedure. Order XX Rule 11(2) would not permit a Court to alter the decree after it was passed ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....n of the Company Court under Section 483, was competent to give such direction in a petition for winding up that would meet the substantial justice as recognized by Section 443 of the Companies Act, 1956. Accordingly, the Division Bench granted installments. When the company paid installments to a substantial extent and prayed for some respite the Division Bench, in our view, would be within its right to consider such prayer and examine as to whether the applicant would deserve such treatment and the Court would not be so powerless to entertain such application. Even if we entertain such application and grant relief that would not in any way hit the provisions of Order XX Rule 11(2) of the Civil Procedure Code as it would not affect the ultimate decision. Company (Court) Rules 1959 is having a statutory force. These rules of 1959 would take care of the procedural part of the company proceedings before the Company Court. Rule 6 would inter-alia provide, while the said rule is silent, the provisions of Civil Procedure Code would apply. Rule 9 would extend inherent power to the Company Court to pass any Order to do substantial Justice in the matter. If we read these two provisions we....