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TMI Blog2010 (1) TMI 579X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-company. 2. The court heard learned counsel appearing for the appellant and also for the caveator/respondent. 3. The appeal is arisen under the following facts and circumstances : (i)The appellant/petitioner-company incorporated under the Companies Act, 1956, is having the object of doing the business of manufacturing and dealing in machinery of all kinds. One Textool Co. Ltd., default company, was indebted to the petitioner/appellant, for a sum of Rs. 36,19,239.38 including the interest. (ii)A suit was filed before the IX Additional District Court, Jabalpur, Madhya Pradesh in Civil Suit No. 242A of 1995 and the said suit came to be decreed on 29-6-2000. After passing of the decree also, no payment was made. The defaulting company ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessor-in-interest of the default company and there was a suit originally filed before the IX Additional District Court, Jabalpur in C.S. No. 242A of 1995 and a decree came to be passed for a sum of Rs. 7,45,313 and further sum of Rs. 7,27,944.60 towards damages along with interest, the liability has become crystalised. Once a decree has been passed, from that time onwards, it becomes enforceable. It is true, an appeal has been preferred, but no stay has been granted by the High Court of Madhya Pradesh. 5. Two courses were open for the appellant/petitioner, either to put the decree in execution or to make an application for winding up under the Companies Act. In the instant case, so long as the liability was ascertained by the District Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending on the file of the High Court of Madhya Pradesh. 9. The contention put forth by learned counsel appearing for the appellant is that once a decree has been passed and the liability has been ascertained, it becomes enforceable and hence, two courses are open, i.e., either to approach the court for putting the decree in execution or seeking the company court for winding up. In the ordinary course, the contention put forth by learned counsel for the appellant could be accepted, but in a given case like this, where a decree has been passed and the same is the subject-matter of challenge by way of filing an appeal and the same is pending before the High Court of Madhya Pradesh, the court is afraid, whether the liabilities are ascertained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alling the respondent, the third defendant therein, as the agent of the first defendant and necessary issues having been framed touching the liability of all the defendants, filing a company petition like this was nothing but a device to pressurise for payment of the said sum by the third defendant. It is well-settled that the winding up petition cannot be made as a device to pressurise the respondent to make payment as per the demand. In view of the pendency of the suit with the above said specific averments and seeking a decree for recovery of money against all defendants jointly and severally, which is exactly the subject-matter in the company petition and the fact that pursuant to the substantial defence, necessary issues have also been ..... X X X X Extracts X X X X X X X X Extracts X X X X
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