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TMI Blog2013 (5) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... onoured on presentation. Interest on the loan was paid until October 2009. On 14 August, 2009 the company addressed a letter to the Respondent seeking an extension of time to repay the loan until 25 December, 2009. A post-dated cheque dated 25 December, 2009 in the amount of Rs.50 lakh was handed over. The cheque was deposited on 9 April, 2010, but was returned by the bankers of the company on the ground that funds were insufficient. 3. A statutory notice of winding up was addressed to the company on 1 May, 2010. In a reply dated 13 May, 2010, the company contended that it was not liable to pay any amount inter alia on the ground that the Respondent did not hold a licence from the Reserve Bank and the documents were fabricated. A Petition for winding up was filed before the Company Court on the ground that the company was unable to pay its debts. An affidavit opposing admission was filed on 13 April, 2011 contending that since the Respondent was a secured creditor, a Company Petition for winding up at its behest was not maintainable. This defence was rejected by the Company Judge, while relying upon a judgment of a Division Bench of this Court in Bharat Overseas Bank Ltd. v. Shree ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments shall be deposited back again by Mr. Munesh Kumar with Registrar General after the expiry of the fixed e period. In case M/s. Asian Power Controls Ltd. has made the payment of Rs.60,00,000/-(Rupees sixty lacs) before the expiry of the fixed time period Mr. Munesh Kumar would not be required to deposit back the hypothecated title papers with Registrar General of the Hon'ble High Court of Delhi. D. On receipt of the complete amount of Rs.60,00,000/- (Rupees sixty lacs) by Mrs. Bubbles Goyal within 120 days of the signing of the present settlement deed, Mrs. Goyal further undertakes to withdraw Complaint Case No. 2034 of 2010 u/s. 138 NIA before the Court of ld. M.M. Shri Dhiraj Mittal (Court room No.509), District Courts, Saket, New Delhi and Company Petition No.455 of 2010 u/s 433 of the Companies Act, 1956 before the Hon'ble High Court of Bombay. Mr. Monish Mukkar undertakes to withdraw the Criminal Misc. (Main) No.1835 of 2011 filed before the Delhi High Court u/s. 482 CrPC and Mrs. Bubbles Goel undertakes to withdraw the counter-affidavit filed by her on 22.10.2011 in the Criminal Misc. (Main) No.1835 of 2011 before the Hon'ble High Court. & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere several other Petitions against the company which were admitted and listed for final hearing and that the company is not doing any business and has stopped its operations for quite sometime. Having come to the conclusion that the company is unable to pay its debts, the learned Company Judge allowed the Company Petition by ordering the winding up of the company and directing that the Official Liquidator shall stand appointed as Liquidator. 6. On behalf of the Appellant, it has been urged that: (i) the loan granted by the Respondent is secured by the creation of a mortgage by the deposit of title deeds; (ii) since the Respondent stands in the position of a secured creditor, it was necessary for the Respondent to state before the Company Court, when the Petition came up for final hearing, as to whether she wished to stand outside the proceedings for winding up and realise her security or, if the security was inadequate to cover the entirety of the claim, the extent of the claim which would be proved in the course of the winding up proceedings; (iii) such a disclosure was not made by the Respondent before the Company Judge when the Petition was heard and the Court has wrongly plac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the Delhi High Court dated 9 December, 2007. Under the terms of settlement, the Appellant agreed to pay an amount of Rs.60,00,000/- to the Respondent within a period of 120 days. The Appellant has admittedly failed in complying with that obligation. The respondent had fulfilled her obligation under the terms of the settlement to deposits the title deeds placed before the Delhi High Court. The time as prescribed in the settlement has expired. After the learned single Judge passed an order of winding up on 21 June, 2012, the hearing of the Appeal was adjourned to 2 July, 2012 in order to enable the parties to settle the dispute. On June, 2012 leave was granted by the Division Bench to amend the Memo of Appeal. On 5 October, 2012 when the Appeal came up, the amendment was still to be carried out. An adjournment was sought on behalf of the Appellant to carry out the amendment. Noting that no amendment had been carried out despite the lapse of time, a final opportunity was granted by the Division Bench on 5 October, 2012. On 1 November, 2012 a statement was made on behalf of the Appellant that it was in a position to pay the dues of the Respondent, but that the Appellant neede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (2) of section 439, among others, a secured creditor is to be deemed to be a creditor within the meaning of clause (b) of sub-section (1). This position has been enunciated in a judgment of the Company Judge of this Court in Canfin Homes Ltd. v. Lloyds Steel Industries Ltd. [2001] 32 SCL 283 (Bom.). In a judgment of a Division Bench of the Madras High Court in Karnatak Vegetable Oils and Refineries Ltd. v. Madras Industrial Investment Corpn. Ltd. AIR 1985 Mad 582 consisting of Rajamannar, C.J. & Rajagopala Ayyangar, J., it was held that it was well-established that a secured creditor is as much entitled as of right to file a petition for winding up as an unsecured creditor. The judgment of the Madras High Court is also authority for the proposition that the rule in bankruptcy that before a secured creditor can file a petition for insolvency he has to abandon his security or to value the security and aver that after giving credit to such value there would be a balance due and payable to him, does not apply in winding up. The Madras High Court held that the general rule is that a creditor who cannot get paid has a right to a winding up order, whether he be a secured or an un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pari passu under clause (c) of the proviso to sub-section (1) of section 529 with such dues. The rules of insolvency which are attracted to proceedings of winding up are inter alia those pertaining to the proof of debts. This is after the stage of the winding up order. The principle has been enunciated in a judgment of Mr. Justice M.N. Venkatachaliah (as the learned Chief Justice then was) speaking for a Division Bench of the Karnataka High Court in State Bank of India v. Hegde and Golay Ltd. [1987] 62 Comp. Cas. 239. The judgment of the Company Judge of this Court in Canfin Homes Ltd. (supra) has also followed the principle that the scheme of the provisions relating to winding up, particularly those in sections 528 and 529 would indicated that stage of proving a claim of a debt arises after an order of winding up passed. In Canffin Homes Ltd., this Court held as follows:- "15. The secured creditor who seeks to prove the whole of his debt in the course of the proceedings of winding up must before he can prove his debt relinquish his security for the benefit of the general body of the creditors. If he surrenders his security for the benefit of the general ..... X X X X Extracts X X X X X X X X Extracts X X X X
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