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2012 (11) TMI 36 - CALCUTTA, HIGH COURTWinding up - credit facilities granted by the appellant bank - cheques deposited by both the companies dishonoured - demand notice u/s 434 by bank followed by winding-up proceeding - Held that:- If we give a close look to the order particularly the operative portion, we would find, the learned Judge admitted the winding up petition for the exact amount that was found to be due and payable by the company to the creditor and asked the company to make payment of the said sum together with interest at that rate of 10% per annum on and from a date that would commensurate with the date of dishonour of relevant cheques along with costs as a condition precedent to stall the advertisement process that would make the winding up petition a representative one. In case the company would pay the amount they would be entitled to resist the process otherwise the process would continue which might culminate in a final order of winding up.If we give a close look to Section 434 a creditor having a claim more than a minimum amount prescribed therein would be entitled to maintain his petition. The test is whether the company would be able to resist the same by disputing the claim bona fide. As in the present case number of letters written by the company admitting their liability that would foreclose the scope of the company to dispute the claim. The company from time to time suggested repayment proposals. The correspondence predominantly suggests, the claim was never disputed - unable to accept the contention of the appellant that bank is not a secured creditor. Even if the provisions of Debt Recovery Act or SARFAESI Act would empower the Bank to recover their dues through special mode prescribed therein that would not operate as a bar to apply for winding up, thus no scope of interference. As the Bank already advertised the notice in newspaper and the winding up petition has already taken its representative character. Dismissal of these appeals would not preclude the company to make any proposal for the payment before the learned Company Judge and in case such proposal is made the learned Company Judge would be at liberty to deal with the same.
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