TMI Blog2002 (8) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... latter. This sum was reduced by the Respondent to Rs. 77.65 lacs, and since the Petitioner was still raising disputes , the Respondent finally offered to settle their claims at Rs. 55 lacs. However, even this offer was not accepted by the Petitioner as per their letter dated February 16, 1997, in which they instead reiterated their proposal to settle the claims of Indian Airlines at Rs. 20 lakhs. These claims could not be settled amicably, and a consensus was not arrived at. Thereafter in Reply to the said Legal notice, it has been stated in the letter dated August 26, 1997 on behalf of Indian Airlines that "Even otherwise the claim of your client for an amount of Rs. 54,24,625.95 towards sale of tickets is not factually correct. It is with a view to pre-empt any action by our clients to seek recovery of money legitimate due to our clients that your clients have chosen to send a legal notice for winding up of our clients. You are requested to advise your clients not only to desist from resorting to any ill-advised and misconceived legal proceedings against our clients but also to make the payment of Rs. 103.53 lacs with interest @ 24% on the said amount from the date of same bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ( v )The machinery of winding-up should not be allowed to be utilised merely as a means of realising its debts. [For the above propositions see Pradeshiya Industrial Investment Corpn. of Uttar Pradesh v. North India Petro-Chemical Ltd. [1994] 2 Comp. LJ. 50 in which the observation in Amalgamated Commercial Traders (P.) Ltd. v. A.C.K. Krishnaswami [1965] 35 Comp. Cas. 456 (SC) and Madhusudan Gordhandas Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. 125 (SC) have been paraphrased]. ( vi )If the stance of the adversaries hangs in balance it is always open to the Company Court to order the Respondent-Company to deposit the disputed amount. This amount may be retained by the Court and be held to the credit of the suit, if any. [see Nishal Enterprises v. Apte Amalgamations Ltd. Civil Appeal No. 720 of 1999 arising out of SLP (C) No. 14096 of 1998 dated 5-2-1999]. It appears to me that the following point may be added to the foregoing considerations. ( vii )Generally speaking, an admission of debt should be available and/or the defence that has been adopted should appear to the Court not to be dishonest and/or a moonshine, for proceedings to c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ween the creditor seeking the winding up and the company sought to be wound up, the debt can be said to be bona fide disputed and the Court will not order the winding up of the company. Winding up proceedings are not intended to be exploited as a normal alternative to the ordinary mode of debt realisation." There can be no scope for any discussion on the proposition enunciated in this case, especially since the Division Bench had analysed and applied the decisions of the Apex Court in Amalgamated Traders (P.) Ltd. s case ( supra ) and Madhusudan Gordhandas Co. s case ( supra ). However, as the factors culled out in paragraph 3 above have been substantially extracted from the views of the Hon ble Supreme Court in Pradeshiya Industrial Investment Corpn. of Uttar Pradesh s case ( supra ) it is this decision ( sic ) rather than that the Division Bench which is in the nature of the restatement of the law on the subject. 5. The exercise of jurisdiction under section 433/434 of the Act is discretionary and in instances where there has been material suppression of facts which may have resulted in the Court issuing notice or admitting the winding-up petition, that may be su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing, it terminated the Interline Agreement with the Petitioner in terms of the letter dated 4th August, 1997. The cause of action, therefore, would have arisen at least on this date, necessitating the filing of the suit for recovery on or before 3rd August, 2000 although since the Ground Handling arrangements stood discontinued with effect from January 1996, it could be much earlier. From the submissions made in the course of argument I gather that the suit has been filed much after that date, thus making it prima facie barred by the prohibitive principles of limitation. This observation should not be treated as definitive, since this issue will appropriately be decided on the Original Side of this Court in the aforementioned suit. 8. There is yet another obstacle to be crossed by the Respondent, inasmuch as a set-off is available only in respect of an ascertained sum of money. The Respondent s claim is in essence in the nature of a counter-claim, for which the period of limitation does not have the same elasticity as in the case of a set-off. Reference need only be made to Order VIII, Rule 6 of the Code of Civil Procedure. When bona fides are to be determined, it may be u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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