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2013 (4) TMI 650 - HC - Companies LawWinding up petition – Maheshwari/appellant could not repay the dues to their creditors/Tata resulting in litigations at the instance of creditors - Whether the secured creditors could file the petition for winding up and if so, what would be the role of the company Court in the matter of admission of the winding up proceeding? Held that:- Winding up is a discretionary remedy. Section 443 of the Act empower the Court to pass appropriate order that would be just in the facts and circumstances of the case as there exist no dispute to the ascertained/ claim of the creditor. The company also could not make any positive effort on that score. However, the Court should use its discretion judiciously. After following considering the case of Kotak Mahindra Bank Limited and Eastern Spining Mills & Industries Limited [2012 (11) TMI 82] We are inclined to give one more opportunity to Maheshwari to repay the dues of Tata. As Maheshwari would pay the dues of Tata as quantified and adjudicated by His Lordship by the order and judgement impugned by monthly installment of Rs.10 lakhs per month for one year commencing from April 10, 2013 and thereafter on the 10th day of the succeeding month. For the next financial year Maheshwari would pay Rs.12.5 lakhs per month on the date fixed as above. In the third financial year Maheshwari would pay Rs.15 lakhs per month until the entire dues are cleared off but if, any dues are still outstanding, that would be paid in four equal monthly installments payable on the date fixed as above. The payment of interest at the contractual rate would be at the yearly rest and be paid on the reducing claim. Frozen amount as on the date of the foregoing order would be taken as a principal sum and would be cleared off first and the subsequent interest component would be paid thereafter. So long the installments are paid off the winding up petition would remain permanently stayed. In default of payment of anyone installment this order would stand recalled and the parties would be at liberty to proceed before the learned company Judge.
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