2018 (4) TMI 731

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....by the respondent company to the petitioner after March 2011 an outstanding amount of Rs. 25,05,676/- was due and payable by the respondent company. On 1.6.2012 the petitioner issued a legal notice to the respondent demanding the payment of the outstanding dues. A response was received from the respondent on 10.7.2012 stating that a reply is being framed to the said legal notice. On 10.9.2012 the petitioner issued a statutory legal notice to which no reply has been received and thereafter the present winding up petition has been filed.   2. The respondents have entered appearance and filed their reply. In their reply it has been pleaded that the debt is a disputed debt and the present winding up petition would not lie for the said p....

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....trued as an admission. He also submits that the petitioner has already filed a suit for recovery of the amount which is pending before District Court. He submits that the respondent has a bona fide and valid defence and is contesting the said suit and written statement to that effect has also been filed.   5. I may only note a few things. The balance sheet filed by the respondent Annexure D shows the Statement of Taxable income of the respondent. The respondent themselves have filed the balance sheet alongwith their reply to show the respondent to be a profitable concern. One of the lists which is attached to this document is a "Statement indicating the Trade Payable as on 31.3.2012". The names of various concerns are stated in a li....

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....view the admission stated in the statement of account for the Assessment Year 2012-13 filed by the respondent themselves.   8. As far as pendency of the suit is concerned, in my opinion, the petitioner filed this winding up petition in November 2012. The suit was filed in August 2014, namely, subsequently. As it is a subsequent development the filing of the present winding up petition would not be affected. For the purpose of saving limitation the petitioner would be fully justified in filing a suit during pendency of the present winding up petition. In the absence of having filed the suit, the claim of the petitioner as of today would have become barred by limitation. In that eventuality, if this court today was to come to a conclu....

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....." 10. In the above context reference may also be had to the judgment of the Patna High Court in Central Bank of India v. Sukhani Mining and Engineering Industries Pvt. Ltd. & Ors., [1977] 47 CompCas 1(Patna), where the court was dealing with a situation where the petitioner therein during pendency of the winding up petition had filed a suit for realisation of its money. The Patna High Court held as follows:-   "20. There is thus no decision either of the Indian or of English courts which I could lay my hands on or which could be brought to my notice to show that the mere fact that a creditor files a suit for the realisation of the debt could debar him from proceeding with his petition for winding up the company. There is nothing....