2005 (3) TMI 467 - SUPREME COURT

Whether the Division Bench of the High Court at Calcutta justified in dismissing the appellant’s appeal summarily holding, inter alia, that the appellant was not entitled to stay of operation of the order passed by the company Judge under appeal or, in other words, whether dismissal of connecting stay petition could be justified reason alone for dismissing appeal summarily which was based on cogent grounds?

Whether the appellant-company can be said to be indebted to the petitioning creditor/respondent in respect of US $ 11,000 equivalent to INR 4,69,680 when the said sum was not remitted by the said petitioning creditor namely, Proxima Medical Systems, GmbH?

Whether the winding up proceedings under the relevant provisions of the Companies Act is maintainable against the company by the said petitioning creditor/respondent when it is evident from the document issued by the Deutsche Bank (remitter’s banker) and Foreign Inland Remittance Certificate (issued by Company’s banker) that US $ 11,000 was remitted by another company namely, Pameda Medizinische System, GmbH and not by the petitioning creditor?

Whether the Division Bench and as well as the Company Judge, in exercise of their jurisdiction under the Companies Act erred in directing the company to deposit Rs. 4,69,480 to secure the alleged claim of the petitioning creditor when the petitioning creditor was not the remitter of the said amount and such was seriously disputed before the Company Judge and the Company Judge did not adjudicate the disputes at controversy and directed the petitioning creditor to file suit in respect thereof?

Whether the Division Bench in passing the order under appeal was justified to direct the company to deposit the balance amount when an earlier Division Bench by an interim order reduced the quantum of deposit from Rs. 4,69,480 as directed by the Company Judge to Rs. 2 lakhs in compliance whereof the company had duly deposited Rs. 2 lakhs on 11-11-2002 and the petitioning creditor failed to present any suit within three months thereof as per direction of the Company Judge?

Whether the Division Bench is justified in passing the order under appeal by dismissing the stay application, on extraneous considerations, when an earlier Division Bench by an interim order granted stay of advertisement subject to appellant’s depositing Rs. 2 lakhs which was duly deposited by the Company to the satisfaction of the Court?

Held that:- Appeal allowed. The appellant will be entitled for refund of the sum of Rs. 2 lakhs deposited by them in compliance of the direction given by the High Court when the matter was pending before it. The High Court is directed to refund the same to the appellant on production of a certified copy of this judgment.

Thus there is no prima facie dispute as to the debt. No justification whatsoever for admitting the winding-up petition. Accordingly, the judgment passed by the learned Single Judge and of the Division Bench are set aside.