TaxTMI 
TaxTMI 
2013 (7) TMI 1117
X X X X Extracts X X X X
X X X X Extracts X X X X
....mpany, was one. The loan was for a period of three months. By orders of this Court dated 24.2.2011, 9.3.2011 and 21.3.2011, Sarla Fabrics Pvt. Ltd. was amalgamated with Shahi Exports Pvt. Ltd., one of the present petitioners. On 28.11.2011, the petition for winding up the company was filed in this Court. Initially, after issuing notice to the Company, there was some effort towards mediation and conciliation but ultimately these efforts failed. On 8.11.2012, the following order was passed by this Court (Indermeet Kaur, J): The authorised representative of the respondent is present. It is not in dispute that the principal figure which is owned by the respondent to the petitioner is Rs. 6 crores; legal notice had been sent by the petitioner for an amount of Rs. 17,05,13,764/-; the balance amount is the interest portion which figure is disputed. To express his bonafide, the respondent shall on the next date bring a sum of Rs. 3 crores by way of demand draft in favour of the petitioner and the payment for the balance sum shall be worked out; payment schedule for the said amount shall also be brought on the affidavit of the Managing Director of the Company. Learned counsel for the resp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ettlement. The parties were accordingly directed to address arguments. 3. The learned counsel for the Company raised a preliminary objection to the maintainability of the company petition. The objection is in two parts. It is submitted that Shahi Exports Pvt. Ltd., petitioner no. 1, is not competent to file the present petition since the loan was not given by it, but was given by Sarla Fabrics Pvt. Ltd.. This objection has only to be stated to be rejected, since Sarla Fabrics Pvt. Ltd. got amalgamated under orders of this Court with Shahi Exports Pvt. Ltd. in March, 2011 itself. All the assets and liabilities of Sarla Fabrics Pvt. Ltd. stood transferred to Shahi Exports Pvt. Ltd. which has filed the present petition for winding up. On the directions of this Court by order dated 7.9.2012, the orders of this Court under which the amalgamation was sanctioned were filed by the petitioners, accompanied by an affidavit of the authorised signatory of petitioner no. 1. The Registrar of Companies was also duly intimated about the amalgamation in the prescribed form which was acknowledged and the merger was approved by him. The present petition was filed on 28.11.2011 after the amalgamation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....vious cheques issued in lieu of the above. Thanking you Yours faithfully For CMD Built-Tech Pvt. Ltd. Authorised Signatory Note: Kindly handover the previous Ch. No. 841991/Dt. 06.04.2010 for Rs. 4 crores and Ch. No. 834700/Dt. 06.04.2010 for Rs. 4 crores which we have not received till date. Reckoning the period of limitation of three years from the above date, the limitation gets extended upto 18.5.2014. The winding-up petition having been filed on 28.11.2011 is well within the period of limitation reckoned from any of the three dates namely, 10.8.2009 or 1.9.2010 or 19.5.2011. 5. In addition to the aforesaid position, it is also noticed that on 8.11.2012, the authorised representative of the Company was present in Court when the order quoted in the earlier part of this order was passed by this Court observing that there was no dispute that the principal amount owed by the Company to the petitioners was Rs. 6 crores. No dispute was raised by the Company before this Court on that date or at any time thereafter whenever the matter was taken up for hearing. On 8.11.2012, the Company even stated that it will be able to arrange the funds by sale of the property at Solan a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt (H.L. Anand, J.), in Diwan Chand Kapoor Vs. The New Rialto Cinema Pvt. Ltd. 28 (1985) DLT 310 was cited on behalf of the company. The point decided in that case was that a claim which became time-barred during the pendency of a winding-up petition at the show-cause notice stage could not be a legitimate basis for winding up proceedings, even if it was within time when the petition was filed. This judgment becomes irrelevant to the case on hand, given the position that neither at the initial stage nor at the present stage has the debt become time-barred. Moreover, it is unfortunate that the judgment was cited without taking care to verify if it holds the field. A Division Bench of this court (Leila Seth & Rajinder Sachar, JJ) reversed the order of H L Anand, J., (supra) and the judgment of the Division Bench is reported in (1986) 60 Comp. Cas. 276 (Delhi). The Division Bench, agreeing with the reasons and judgment of the Bombay High Court in Modern Dekor Painting Contracts P. Ltd. Vs. Jenson & Nicholson (India) Ltd. (1985) 58 Comp. Cas. 255 (Bom.) held that there is nothing in the Companies Act, 1956 to the effect that a petition for winding-up which was properly maintainable wh....