9911796707
TMI Blog2009 (10) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... Nagar, New Delhi-110 065. The authorised share capital of the petitioner-company is Rs. 20 crores divided into 1,00,00,000 equity shares of Rs. 10 each, and 1,00,00,000 cumulative shares at 12 per cent, of Rs. 10 each. The paid-up share capital of the petitioner-company is Rs. 17,20,39,000. The main object of the petitioner-company is to do business of manufacturers and dealers in machinery of all kinds, particularly textile machinery and all or any of the business of mechanical, electrical, railway, marine, aeronautical, agricultural, sanitary, civil and construction engineers. 3. One Textool Co. Ltd. (default company) is indebted to the petitioner a sum of Rs. 36,19,239.38, which includes interest at the rate of 6 per cent. per annum un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner filed a company petition before this court in C. P. No. 222 of 2001 against the default company for winding up. In the said petition, the default company filed an affidavit and memo stating that the matter is pending before the BIFR for reconstruction. Taking note of the said fact this court closed the company petition on September 8, 2003, with liberty to the petitioner to revive the company petition by way of filing fresh petition after the BIFR proceedings are over. 5. The respondent-company herein took over the default company pursuant to the order passed in Case No. 407 of 2002 before the BIFR and therefore all the assets and liabilities of the default company were taken over by the respondent-company herein. According to the pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... address and therefore the service of notice itself is defective one, which is a statutory violation and the petitioner is not entitled to file the winding up petition on the basis of the above defective notice. It is also stated in the counter affidavit that the petitioner obtained an ex parte decree against M/s. Textool Co. Ltd., viz., the default company in C. S. No. 242A of 1995, against which appeal in F. A. No. 145 of 2002 is pending before the High Court of Madhya Pradesh at Jabalpur and as on date the appeal is pending. The decree itself having been under challenge, i.e., dispute with regard to the liability is pending, there is no cause of action for filing the present company petition. On the above said grounds the respondent praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any, to the petitioner-company is also not established for maintaining the company petition. 10. In the counter affidavit it is further stated that the statutory notice was not served on the respondent's registered office and it was served only on its unit office and the same is in violation of section 434(1)(a) of the Companies Act, 1956. 11. The above facts, viz., pendency of the appeal against the judgment and decree before the High Court of Madhya Pradesh at Jabalpur, the financial status of the respondent, the non-service of the statutory notice at the registered office of the respondent-company, are not denied by the petitioner-company by filing reply to the counter affidavit. Under section 433(e) of the Companies Act, 1956, if a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only on appreciation of evidence. Having filed a suit calling 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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