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2019 (3) TMI 960 - HC - Companies LawWinding up petition - whether suit prior to filing of winding up petition an impediment against the petitioner in filing the present petition? - calculation of amount due - as submitted claim of interest is based on an alleged oral agreement between the parties and is not in any manner reflected in any written documents exchanged between the parties - HELD THAT:- As per the records available with the respondent company, they have accepted a liability of ₹ 50,16,189/- in favour of the petitioner as on 31.03.2008, which is clear from the communication dated 13.08.2010 sent by the respondent company to the Income Tax Department. It is also a matter of fact that TDS certificate had been issued by the respondent company to the petitioner for the said dues. Further in their reply, the respondent company accepted that the amount relied upon by the petitioner was duly received in their account though it was claimed that the same was returned by Mr.R.P.Mittal. Clearly, prima facie amount appears due and payable to the Petitioner. As decided in Bank of Nova Scotia vs. RPG Transmission Ltd [2002 (10) TMI 696 - HIGH COURT OF DELHI] mere filing of a proceeding before the DRT would not negate the right of the banks to file a petition for winding up of the respondent company. Hence, in view of the dicta of the Division Bench filing a suit prior to filing of winding up petition may not be an impediment against the petitioner in filing the present petition. By the present petition what the Petitioner seeks is to wind up the Respondent Company. An opportunity should be given to the respondent company to prove its case before a civil court. However, it is necessary to secure the claim of the petitioner. The petitioner has claimed outstanding amount in the notice sent for a sum of ₹ 39,17,007/- which includes interest @ 12% per annum. There is some merit in the plea of the learned counsel for the respondent that the claim of interest is based on an alleged oral agreement between the parties and is not in any manner reflected in any written documents exchanged between the parties. Keeping in view the above facts the principal amount outstanding prima facie payable by the respondent is ₹ 17,57,000/-. Let the respondent deposit a sum of ₹ 20 lacs in court with the Registrar General of this court.
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