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TMI Blog2010 (1) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... s not put the decree in execution, but has come forward with the winding up petition. The appeal does not carry any merit whatsoever and the same is dismissed. - O.S.A. NO. 25 OF 2010 AND M.P. NO. 1 OF 2010 - - - Dated:- 27-1-2010 - M. CHOCKALINGAM AND T. RAJA, JJ. B. Mohan for the Appellant. P.H. Arvind Pandian for the Respondent. JUDGMENT M. Chockalingam, J. - This intra-court appeal challenges the order dated 12-1-2009, passed by the learned Single Judge of this Court, dismissing the Company Petition No. 16 of 2009 along with Company Application No. 311 of 2009 - Ishwar Industries Ltd. v. Lakshmi Machine Works Ltd. (No. 1) [2010] 156 Comp. Cas. 219 , seeking winding up of the respondent-company. 2. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application was resisted by the respondent stating that the claim was made in the said suit. It is also true, a decree has been passed. But, challenging the said judgment, an appeal has been preferred in F.A. No. 145 of 2002 and the same is pending on the file of the High Court of Madhya Pradesh and hence the liability remains unascertained. Necessary issues were framed. The grievance of the respondent-company before the appellate forum was that they were not properly considered. Under such circumstances, it was also a continuation of the suit and hence, it is not a case where the winding up could be ordered. 4. Advancing arguments on behalf of the appellant, learned counsel would submit that so long as the respondent-company was succe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commodities Supply Corpn. v. Swadesh Agro Farming Storage (P.) Ltd. [1999] 8 SCC 315. 7. Learned counsel appearing for the caveator/respondent-company made his sincere attempt for sustaining the order of the learned Single Judge. 8. The court paid its anxious considerations on the submissions made by either side. It is not in controversy that the respondent-company has taken up the company in default. It was a claim made by the appellant that a sum of Rs. 36,19,239.38 was due from the defaulting company. It is also true that a suit in C.S. No. 242A of 1995 was filed and a decree came to be passed on 29-6-2000. It is also brought to the notice of the court that as against the said decree, an appeal has been preferred in F. A. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch a situation in the decision reported in Rediffusion-Dentsu, Young and Rubicam (P.) Ltd. v. Solidaire India Ltd. [2008] 145 Comp. Cas. 693 (Mad.), wherein it is held as follows (page 701): "15. Whenever a company petition is filed seeking winding up, the court must consider the circumstances in every case and come to a necessary conclusion. Needless to say that granting of the relief of winding up is a discretionary relief; but, the court when exercise this discretionary power, it must be governed by justice and equity. The court must exercise its discretion judiciously also. It is well-settled principle of law that if there is any substantial defence put forth by the respondent, the same has got to be decided by the court only on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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