TMI Blog1985 (3) TMI 191X X X X Extracts X X X X X X X X Extracts X X X X ..... utes and we have been told, and we are giving this judgment on that footing, that the dismissal by the learned company judge was on the company's submission that the petitioners being secured creditors were not entitled to maintain a petition for winding up. Indeed, this plea has been taken in the affidavit of S.H. Daga, a director of the company sought to be wound up, in paragraph 3( ii ). He has claimed in the said paragraph that the machinery of the company sought to be wound up had been hypothecated in favour of petitioners. The charge created by the said hypothecation has also been duly registered with the Registrar of Companies. According to the deponent, therefore, the petitioner, being a secured creditor, cannot file or maintain the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore, advert to the same forthwith. It is pertinent to note that the Division Bench consisting of Rajamannar C.J. and Rajagopala Ayyangar J. were disposing of, by judgment, an appeal preferred, not from such a threshold order as the one before us but from an order directing the winding up of a company. Reliance was placed before the Division Bench on a passage from Buckley on the Companies Acts and a distinction was made between the provisions in Bankruptcy law (law of Insolvency in India) and that existing under the Companies Act. On behalf of the company, however, it was urged that the creditor had ample security for his debt and that there was no averment that the security was insufficient. It was also submitted that except for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut after the petition was admitted, advertised, and after considering all relevant views, and in particular, the views of other creditors secured as well as unsecured. Finally, we have the decision also of the Calcutta High Court in Calcutta Safe Deposit Co. Ltd. v. Ranjit Mathuradas Sampat [1971] 41 Comp. Cas. 1063 (Cal.). In that case, the learned single judge has specifically considered the secured creditors' right to present such petitions, and it. has been held that if a secured creditor serves a notice under section 434 then within the period of the said three weeks, the company must take action in the matter and satisfy the creditor that his claim would either be paid or that his security is intact. According to the Calcutta Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion as to whether the security is sufficient or not and exercise its discretion to accept the petitioning creditor's claims and request for winding up or to reject the same on judicial consideration. In the view that we have taken, the appeal must be allowed and we accordingly so order. Accordingly, the order of the learned company judge dismissing the petition for winding up, which is the order dated February 6, 1980, and which order is impugned in this appeal is set aside. We would ordinarily have passed an order admitting the petition but since a considerable time has elapsed, we think it would be appropriate to allow the parties to put in further affidavits pertaining to the extent of the security held by the petitioning creditors a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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