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2010 (12) TMI 1051 - HIGH COURT OF PUNJAB AND HARYANAWinding up unable to discharge the admitted liability - held that:- it is not open to the Company at this stage to assert that the claim of the creditors is mala fide, vexatious and is not bona fide keeping in view the judicial propriety and the principle that there should not be multiple proceedings in respect of the same question. Though it is open to the Company to resist the order of winding up on other grounds such as that it will not be fair to wind up the Company for the reason that it is a running concern or that the interest of the workmen is involved, but the plea that the debt of the creditor is disputed, cannot be permitted to be raised again. The defence of the Company is not bona fide. The amount is due and payable by the company. The Balance Sheets of the Company also reflects large sum of money as due and payable to the secured creditors. Therefore, it would be just and equitable to order winding up of the Company, which has failed to discharge its admitted liabilities. Notice u/s 13(4) of the SARFAESI Act - held that:- It is not a case where the Company has approached this Court after the notice under section 13(2) was issued. The Company challenged the action under section 13(2) only after the notice under section 13(4) was issued and that too after reasons for raising demand were communicated. The Company cannot be permitted to challenge part of the action when the financial institutions have proceeded ahead to recover possession of the secured assets in terms of section 13(4) of the SARFAESI Act. In terms of the judgments aforesaid, the remedy of the Company is to approach DRT in terms of section 17 of the SARFAESI Act. The Government of India has enacted The Micro, Small and Medium Enterprises Development (MSMED) Act, 2006 on June 16, 2006 which was notified on 2-10-2006. The MSMED Act, 2006 has modified the definition of micro, small and medium enterprises engaged in manufacturing or production and providing or rendering of services. As per the said Act, a small enterprise is an enterprise where the investment in plant and machinery is more than ₹ 25 lakhs but does not exceed ₹ 5 crore; and a medium enterprise is an enterprise where the investment in plant and machinery is more than ₹ 5 crore but does not exceed ₹ 10 crore. In fact, such was the conditions even prior to the enactment of the said Act. - The company has not produced any document to show that its investment in plant and machinery was less than ₹ 10 crores at the time of starting industry. It is asserted by the secured creditor that one time settlement guidelines are not applicable to the Company. Such stand of the secured creditors that the Company is not small and medium enterprise has not been controverted. - the company cannot avail the benefit of One Time Settlement Scheme notified and circulated on 3-9-2005 and 22-11-2005.
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