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2017 (4) TMI 1600 - CALCUTTA HIGH COURTDismissal of creditor's winding-up petition without reference to the company - institution of proceedings before a Debts Recovery Tribunal in respect of the claim that was made the subject-matter of the petition before the company Court - HELD THAT:- When a party seeks to enforce a statutory right to approach a Court with a claim, ordinarily, the Court has no authority to refuse to entertain the claim unless such authority is conferred by the same statute or is established by judicial precedents. That does not imply that the claim must be allowed; only that the claim must be entertained for an adjudication on merits. Though creditors' petitions are carried to a company Court for the realisation of their debts, yet the realisation of the debt of a particular creditor is only incidental to a creditor's petition for winding up a company - However, as long as a petitioner claims that there is a debt due, demonstrates the service of a statutory notice on the company and asserts that the debt has not been discharged or secured or compounded for within three weeks of the receipt of such notice by the company, an adjudication on merits is called for. That a bank or financial institution has launched proceedings under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act, 1993 is not, by itself, a bar to such bank or financial institution filing a creditor's winding-up petition before the company Court on the same debt - The claim in the two sets of proceedings may be the same, but the adjudication in the company proceedings would not be confined merely to discovering whether the debt was due or the extent thereof, but also whether it would be desirable for the company to be sent into liquidation. As is evident from the order impugned, the petitioning creditor was knocked out of Court before even the company appeared to oppose the petition - the order impugned cannot be sustained and the same is set aside. Appeal allowed.
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