TMI Blog2015 (5) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... that was within the power of the Company Court and the Division Bench being an extension of the Company Court under Section 483, was competent to give such direction in a petition for winding up that would meet the substantial justice as recognized by Section 443 of the Companies Act, 1956. Accordingly, the Division Bench granted installments. When the company paid installments to a substantial extent and prayed for some respite the Division Bench, in our view, would be within its right to consider such prayer and examine as to whether the applicant would deserve such treatment and the Court would not be so powerless to entertain such application. Even if we entertain such application and grant relief that would not in any way hit the provisions of Order XX Rule 11(2) of the Civil Procedure Code as it would not affect the ultimate decision. Company (Court) Rules 1959 is having a statutory force. These rules of 1959 would take care of the procedural part of the company proceedings before the Company Court. Rule 6 would inter-alia provide, while the said rule is silent, the provisions of Civil Procedure Code would apply. Rule 9 would extend inherent power to the Company Court to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the applicant above named. - Decided partly in favour of appellant. - A.C.O. No. 25 of 2015, A.P.O. No. 457 of 2012, C.P. 560 of 2011 - - - Dated:- 17-4-2015 - Mr. Ashim Kumar Banerjee and Mr. Shiva Kant Prasad, JJ. For The Appellant : Mr. Swatarup Banerjee, Advocate, Mr. Sourav Sengupta, Advocate For The Respondent : Mr. Tilak Bose, Senior Advocate, Ms. Manju Bhutoria, Advocate, Mr. Souvik Chowdhury, Advocate ASHIM KUMAR BANERJEE, J. BACKDROP: Tata Capital Finance Limited filed a winding up petition against Maheswari Ispat Limited, the applicant above named, inter-alia praying for its winding up on the ground, Maheswari failed to repay the financial assistance to the extent of ₹ 5 crore approximately. Maheswari partly secured the claim through pledge of a fixed deposit receipt for 75 lacs that the Tata encashed with the permission of Maheswari and recovered a sum of ₹ 92.54 lacs. Taking into account such encashment and irregular repayments, a sum of ₹ 2,27,57,975 became due and payable as would appear from the confirmation of accounts that Maheswari signed on July 14, 2011. The parties agreed, the borrower would pay interest at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the payment terms. They would contend, they already paid a sum of ₹ 1.95 crores leaving a balance sum of ₹ 2,17,98,703. They wanted to clear it off in a phased manner, they wanted to pay ₹ 5 lacs per month in six months and thereafter increasing the same with half-yearly interval of ₹ 2.5 lacs and then ₹ 10 lacs each for ten months, ₹ 20 lacs and ₹ 22,98,703 respectively in next two months. The respondent contested the application and filed affidavit that we heard on the above mentioned dates. CONTENTIONS: Mr. Satarup Banerjee learned Counsel appearing for the applicant would contend, Maheswari was in financial difficulty. They did not have any intention to defraud the creditors, in fact, they were clearing the dues of other creditors as well by making payment of monthly installment. The present application was made only to gain some respite. This Court, in its discretion, should suitably modify the schedule so as to help Maheswari to clear off the dues. Per contra, Mr. Tilak Bose learned Senior Counsel would submit, once the appeal stood disposed of, the Division Bench would lose its competence and became functus officio hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could be paid in installment only with the consent of the decree holder. However, the Order passed would not be available for revision. The appeal would be the only remedy. The facts would depict, the learned munsif passed a decree for ejectment and arrears of rent. In execution, the judgment debtor applied for installment that the learned munsif acceded to. This Court observed, it was not permissible without the consent of the decree holder in view of the provisions of Order XX Rule 11(2) of the Code of Civil Procedure however, this Court dismissed the revisional application observing, an appeal would lie. ii) 54 Calcutta Weekly Notes Page-568 (Piyaratana Unnanse and another Vs. Wahareke Sonuttara Unnanse and others): The Prevy Council decided an appeal against a decree of the Supreme Court of Ceylon. While deciding the appeal. the Prevy Council was of the view, the Court which passed the Order was functus officio and could not set aside the Order however, wrong it may appear to be, this could be done only on appeal. The Prevy Council also noticed the exception within a narrow campus. When there was any clerical error or accidental omission in the decree, the Court whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to grant of installment was in question. We, the Chartered High Court judges would derive power from the Letters Patent that would give inherent power to do substantial justice. The Code of Civil Procedure would also not stand in the way to do substantial justice and such inherent power is recognized by the Code under Section 151. However, such discretion could only be exercised within the permissible limit. Inherent jurisdiction of the Curt to make order ex debito justitiae is undoubtedly affirmed by Section 151, nevertheless, that jurisdiction cannot be exercised so as to nullify the provisions of the code. In our considered view, the High Court, being a Court of record, is always entitled to correct its own mistake to set its record right. Similarly, this Court is not so powerless to do substantial justice by moulding the relief that would not affect the ultimate decision. The Division Bench was approached with the principal issue as to whether the appellant was entitled to upset the order of admission of winding up. We did not accept the contention of the appellant and rejected the same. However, we re-scheduled the payment that was within the power of the Compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... livelihood of hundreds or thousands. Moreover, interest of share-holders and creditors would be in jeopardy. The respondent would carry on business of extending financial support that would have a tremendous risk. Keeping it in view, they advanced money to the applicant. The applicant already paid a substantial part of it. The Order of admission of winding up is hanging as a sword on their shoulder. Little respite, they would seek, should, in our view, be acceded to that would meet the ends of justice. We however, do not agree with the schedule that Maheswari would suggest. We would consider their prayer for re-scheduling after six months. In the mean-time, they should continue to make payment at the rate ₹ 10 lacs per month. In case they do so they would be at liberty to approach the learned Company Judge for re-scheduling the installment and the learned Company Judge would be free to deal with such application in accordance of law. We make it clear, in case of a single default during the six months this Order would stand recalled and Tata would be at liberty to approach the learned Company Judge to proceed for winding up of Maheswari, the applicant above named. ACO 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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