TMI Blog2012 (4) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... lity, so unconditionally - relegate the petitioning creditor to a suit to recover the claimed sum, but, upon the company furnishing security - directing the company to furnish within four weeks from date a bank guarantee in favour of the petitioning creditor by a nationalized bank for a sum of Rs. 2,92,01,970.41/- and to keep it renewed until contrary orders are passed by any court. The petitioning creditor will file a suit claiming the sum claimed in the winding up application within four weeks of furnishing of the above security - winding up application is disposed of - C. P NO. 366 OF 2011 - - - Dated:- 22-2-2012 - I.P. MUKERJI, J. Mainak Bose, U.S. Menon, Saunak Sengupta, S. Sultana, Ranjan Bachawat, Saikat Sen, Ms. Ipsita Banerjee and S. Sengupta for the Appearing Parties. JUDGMENT 1. This is an application for the winding up of Tantia Constructions Ltd. (hereinafter "the company"). It is made by a Malaysian company by the name of Road Builder (M) Sdn Bhd, (hereinafter "the petitioning creditor"). These two companies entered into a joint venture agreement on 14th July, 2003 for setting up a project in the State of Mizoram. After sometime, the company pulled o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and mobilization advance stands cleared (the last BD for Rs. 25,35,500/- is expected to be released in this week)." Then he refers to another email of 29th March, 2009 sent by I.P. Tantia on behalf of the company. This is what was stated therein: "Regarding the instalment payment, I regret that there is a delay as Mizoram Project is facing lot of problem and the desired billing is not achieved. In the meantime, our Company also had some bad time and hence, the delay. I would request you to kindly bear with us for some more time." He submits after showing me the above correspondence that the company does not have any defence to the claim of the petitioning creditor and that I should admit the winding up application. 5. Mr. Ranjan Bachawat, learned counsel for the company tried his best to prove that the company had a substantial defence to the claim of the petitioning creditor. He submitted that a substantial number of equipments were imported by the petitioning creditor. After importation they were sold to the company but the ownership of these equipments remained with the vendor, i.e., the petitioning creditor. According to the relevant laws of India, these equipments b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory notice the company had asked the petitioning creditor to hand over the invoices of the original manufacturer of the equipments along with no due certificates, release of charge and so on. The petitioning creditor on 8th June, 2011 affirmed that invoices, no objection certificates were handed over to the Company. 8. It was also argued at the time of the hearing of this application that the no objection certificates for three vehicles had not been procured by the petitioning creditor. I was shown pages 80 and 83 of the petition by Mr. Mainak Bose for the petitioning creditor to show that these no objection certificates were duly furnished. I will discuss the cases cited a little later. Findings and Conclusions 9. It is absolutely plain that the company had the fullest use of all the equipments and vehicles described in Schedule II to the agreement dated 15th December, 2007. They have paid Rs. 48,00,000/- for it and not the rest of the consideration. In their email of 29th July, 2008 the company wanted accommodation till November 2008. There was no disputation about liability. There was a request to the petitioning creditor to provide some "papers". The e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am bound by the three judges' bench decision of the Supreme Court which clearly opines that when there is no doubt regarding a debt or that the dispute raised by the Company is illusory or not bona fide, the Court would entertain a winding up application. In that case the solvency of the company would be no ground to resist its winding up (See paragraphs 20 to 24 of the judgment). 14. The case of Mechalec Engineers Mfrs. v. Basic Equipment Corpn. AIR 1977 SC 577 has been a source of great guidance to the Courts in dealing with winding up applications founded on an alleged debt. In that case, the Supreme Court was considering the principles to be followed in granting leave to defend to a defendant in a summary suit. The judgment by Beg J. for the Court adopted the dicta of Das J. in Sm. Kiranmoyee Dassi v. Dr. J. Chatterjee [1945] 49 CWN 246. A part of the principles laid down applied to circumstances when the defendant could be ordered to furnish security for the claim of the plaintiff. Our Courts in a winding up application often direct the company to furnish security for the claim of the petitioning creditor. In doing so it follows the principles laid down in parag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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