TMI Blog2012 (3) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... CJ. This appeal is directed against the order dated 1 February 2012 of the learned Company Judge of this Court admitting the winding up petition filed by the respondent herein (hereinafter referred to as "the bank" or "the petitioning creditor") and appointing the official liquidator as the provisional liquidator of the appellant-company with all powers under the provisions of the Companies Act, 1956 (hereinafter referred to as "the Act"). 2. The appellant-company had taken a loan from the ICICI, Mumbai under the Loan Agreement dated 14 August 1997. In the year 2000, ICICI had called upon the appellant to repay the outstanding amount with interest and other charges. The appellant-company had suggested the proposal for settlement by way of one time resettlement of loan. Ultimately, on 12 December 2001, ICICI agreed to accept the one time settlement (OTS) of the company at Rs. 3.50 crores subject to certain conditions. According to the petitioning creditor, the appellant did not abide by the conditions, but the appellant did make some payments purporting to pay towards the part payment of OTS. 3. It appears that under a Deed of Assignment dated 31 March 2005 and the Deed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first instalment or committing default in payment of any two instalments the company petition shall stand admitted and to be advertised by the petitioner in Free Press Journal on payment of usual charges. ( f ) Needless to state that if the amount is deposited within the time stipulated then the same will be dealt by the D.R.T./Recovery Officer in accordance with law. All contentions in that behalf of both sides are specifically kept open. ( g ) Ad-interim orders passed on 8th June, 2006 by this Court shall continue and liberty is reserved to the petitioner to apply for appointment of Provisional Liquidator in the event of the respondent committing default in payment of first instalment or any two subsequent instalments." 5. There is no dispute about the fact that the appellant-company did pay the aforesaid amount of Rs. 3.16 crores by 31 December 2007 and that the question of appointing the provisional liquidator did not arise. 6. Thereafter, the DRT made order dated 20 August 2009 directing issuance of recovery certificate in favour of the petitioning creditor and against the appellant-company. On the basis thereof, the recovery officer issued the recovery ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not deposited with the Registry and therefore, the learned Company Judge passed the impugned order admitting the winding up petition and for publication of the advertisement. It is the aforesaid order which is challenged in this appeal. 11. Mr. Kumbhakoni, learned counsel for the appellant has submitted that the appellant is ready and willing to deposit Rs. 1.5 crores as directed by the order dated 14 November 2011 but once the amount is deposited, the company petition should be dismissed. It is submitted that the winding up petition is not maintainable because even though the petitioning creditor is having recovery certificate issued by the Debt Recovery Tribunal, it has not resorted to execution of the said certificate. Placing reliance on provisions of section 433(e) read with section 434(1)(b), it is submitted that only after the petitioning credit resorts to execution proceedings on the basis of the recovery certificate issued by DRT and only if the execution process is returned unsatisfied in whole or in part, the petitioner-bank can resort to winding up proceedings. It is submitted that since the appellant has already filed an appeal before the Debt Recovery Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollowing schedule: (over and above the amounts paid earlier) ( i ) Rs. 1.50 crores to be paid by 17 February 2012. ( ii ) Rs. 1.00 crores by 16 March 2012. ( iii ) Rs. 0.75 crores by 30 March 2012 Rs. 3.25 crores 15. On the other hand, the learned counsel for the petitioning- creditor has opposed the appeal and supported the judgment of the learned Company Judge. 16. Having heard the learned counsel for the parties, we have given our anxious consideration to the rival submissions. 17. As regards the appellant's contention that the petitioning creditor cannot invoke Section 433(e) of the Companies Act for winding up on the basis of the recovery certificate issued by the Debt Recovery Tribunal, so long as the recovery certificate is not returned unsatisfied in whole or in part, we are not required to express any opinion, because the appeal deserves to be allowed on other grounds, particularly having regard to the fact that the first winding up petition being Company Petition No.5 of 2006 by this very petitioning creditor against the same company was dismissed by this Court in terms of order dated 8 June 2006 which was complied with by the company ( i.e. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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