TMI Blog2007 (1) TMI 252X X X X Extracts X X X X X X X X Extracts X X X X ..... lf of the respondent. The petition having been filed on August 25, 2006, this court issued notice thereon on August 31, 2005, requiring the respondent to be served by registered post. Steps were accordingly taken by the petitioner and notice was issued on the respondent by registered post vide Memo No. 242-WC-XIV, dated September 22, 2005. The A/D card also returned after service of the notice on the sole respondent. The respondent, however, abstained from entering appearance in the proceeding. This court on December 12, 2005, noticing the unrebutted statements in the petition and the non-appearance of the respondent-company in spite of being served with the notice, directed advertisement of the petition in the prescribed form and in acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed March 24, 2003, drawn on Punjab National Bank, New Delhi, purporting to repay the principal amount as well as the interest accrued after statutory deductions. The petitioner having deposited the said cheque with its bank, i.e ., the City Bank, it was forwarded to the respondent's bank, namely, Punjab National Bank for collection. The latter bank, returned the cheque with the remark "exceeds arrangement", on April 2, 2003. The petitioner through its advocate issued a notice dated April 26, 2003, to the respondent-company, as well as its managing director and the directors, intimating them of the above. Thereby, a demand for payment of the amount mentioned in the cheque so dishonoured, was made indicating that in case the payment as reque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner is entitled to an order directing that it (the respondent-company) be wound up. Learned counsel has argued that the essential preconditions enumerated in section 434 of the Act to render a defaulter company unable to pay its debts having been established, the relief as prayed for ought to be granted by this court. This is more so, as neither the petitioner's claim nor the facts stated in the petition have been refuted. In response to a pointed query made by this court bearing on the maintainability of the petition in the face of a pending proceeding under section 138 of the Negotiable Instruments Act, 1881, learned counsel has urged that as the said lis is essentially one for recovery of the sum lying outstanding in the account of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 6, 2005, demanding the said amount within a period of 21 days from the receipt thereof, also remained uncomplied, Apart from the fact that the said notice had been issued by registered post with A/D, the assertion that it had been received on the respondent-company on January 12, 2005, has remained unquestioned. The photocopy of one of the A/D cards accompanying the notice and addressed to the respondent-company at its registered office at Siakur Villa, Bishanpur, Shillong (Meghalya), annexed to the petition, proclaims that it had been served on behalf of the respondent-company on January 12, 2005. The irresistible conclusion thus, is that the respondent company in spite of being served with the notice registering a demand of the amount d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of imprisonment as well as of fine to the extent of an amount twice the sum of the cheque, a proceeding thereunder cannot be construed to be for recovery of the money in default. In other words, a proceeding under section 138 of the Negotiable Instruments Act 1881 cannot be construed to be an alternative to a civil suit or any other proceeding for realisation of the amount remaining unpaid as a debt following the dishonour of a cheque by the debtor. The empowerment of a court under the legal provision to impose a fine of a sum, which may extend to twice the cheque amount, per se does not render the proceeding to be dominantry one for the recovery thereof, remedies comprehended under the Negotiable Instruments Act, 1881 and the Act are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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