TMI Blog2003 (3) TMI 634X X X X Extracts X X X X X X X X Extracts X X X X ..... leaving a balance sum of Rs. 25 lakhs together with interest. The petitioner through its advocate raised a statutory notice of demand dated 3-4-1999, inter alia, demanding Rs. 25 lakhs on account of balance of the principal amount and Rs. 11,69,353.27 on account of balance of the interest payable during the period 20-12-1994 to 31-3-1999. The company through its Advocate denied its liability as according to them the liability was a premature one and asked for withdrawal of statutory notice. In the affidavit-in-opposition such consistent stand had been taken by the company. To elaborate such stand reliance was placed on a letter dated 11-11-1994 being Annexure A to the affidavit-in-opposition appearing at pages 12 and 13 thereof. The conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner not to claim back the amount of loan unless and until the same was repaid by M/s. Eastern Sugar and Industries Ltd. for whom the loan was taken. According to the company, since the amount was not repaid by Eastern Sugar Industries Ltd. they were not liable to make payment of the loan amount to the petitioner. 3. On the plain reading of the contents of the said letter quoted ( supra ) it would appear that the proposal for taking over the sugar mill was the cause for obtaining the loan. In short the company by the said letter justified their need. However, the repayment schedule suggested in the last paragraph of the said letter was unequivocal and did not attach any pre-condition. Apart from the aforesaid letter the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany merely acted as a conduit pipe. The company only acted as a commission agent between Eastern Sugar and the petitioner. Since the money was not paid by Eastern Sugar the company did not and could not pay the same to the petitioner. This would amount to, according to Mr. Chatterjee, bona fide dispute and could not be adjudicated upon in the instant proceeding. Mr. Chatterjee, further submitted that the claim, if any, was secured as the company created an equitable mortgage by deposit of a Title Deed which was still lying with the petitioner. Since the claim was secured the winding up petition was not the proper remedy. Lastly, he contended that the aforesaid facts would show that there existed a bona fide dispute and the company had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e between the parties annexed to the pleadings also did not support such contention of the company. Hence, amount was due and payable on the date of the presentation of the petition. 10. Since the amount was admittedly due and payable there could not be any bona fide dispute for which I should relegate the parties to suit. 11. Mr. Chatterjee also submitted that since the petitioner s claim was secured by collateral security, winding up petition was not maintainable. Such submission of Mr. Chatterjee is not tenable in view of the fact that any creditor who has a just claim can apply for winding up. If a creditor s claim is secured he can opt to remain outside the scope of winding up. However a collateral security for the claim cann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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