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TMI Blog2015 (3) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... ed payments in part. After giving credit to the sums already received Himatsingka Chemicals Private Limited found a sum of Rs. 10, 62,900/- still remaining due and payable as on September 7, 2011. Despite repeated reminders, such sum would remain unpaid. Moreover, respondent would fail to submit sale tax declaration forms amounting to Rs. 51,696/-. Himatsingka Chemicals Private Limited issued a statutory notice of demand intending to apply for winding up of the respondent. The respondent company duly received the said statutory notice of demand dated March 11, 2013 and replied to the same vide letter dated March 25, 2013, inter alia, denying their liability as to the alleged transactions. Himatsingka Chemicals Private Limited filed winding up petition being C.P. No. 338 of 2013. The company contested the said proceeding by filing affidavit. We are told, after a prolonged hearing, the appellant withdrew the said winding up petition with liberty to apply afresh. However, learned Company Judge while granting the prayer for withdrawal, granted liberty "to take steps in accordance with law." Himatsingka Chemicals Private Limited again served a notice of demand on June 16, 2014 followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -same cause of action would not lie. While replying, Mr. Mitra would rely upon a letter dated January 19, 2015 whereby the respondent categorically assured liquidation of the outstanding bill amount. Once they would admit the claim and assure repayment the winding up petition would be maintainable. The parties cited the following decisions to support the rival contentions: 1. Keekangote Narayana Tantri Vs. Nagappa and Others reported in All India Reporter 1918 Madras Page- 126. 2. Khudi Rai vs. Lalo Rai and Others reported in All India Reporter 1926 Patna Page- 259. 3. Sheodan Singh Vs. Daryao Kunwar reported in All India Reporter 1966 Supreme Court Page- 1332. 4. Shivashankar Prasad Sah and Another Vs. Baikunth Nath Singh and Others reported in All India Reporter 1969 Supreme Court page- 971. 5. Kewal Singh Vs. Mt. Lajwanti reported in All India Reporter 1980 Supreme Court Page 161. 6. Escorts Farms Limited Vs. Commissioner, Kumanon Division, Nainital and Others reported in All India Reporter 2004 Supreme Court Page- 2186. OUR VIEWS: The concept of justice delivery system would not support multiplicity of proceedings. The preamble of our procedural law would sugges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IO: The Code of Civil Procedure would lay down the procedure, inter alia, for suits. The Company (Court) Rules 1959 would make the Code applicable in the company proceedings as well, as far as possible and practicable in terms of Rule 6 thereof. The appellant filed the winding up petition on a claim for goods sold and delivered that would include claim for non-submission of Sales Tax Declaration. Mr. Mitra was not correct to say otherwise. We have verified the averments made in the earlier proceeding. The respondent contested the said proceeding by filing affidavit. We do not know under what circumstance the appellant withdrew the said proceeding. We also do not know whether any leave was specifically asked for to bring further winding up petition. We have looked into the pleadings in both the proceedings. We are also not sure as to what necessitated the appellant to withdraw the earlier one and file the later one. Neither Mr. Mitra nor Mr. Mukherjee would highlight on this aspect. We find, learned Judge granted liberty to bring a fresh action in accordance with law. We also find, there was no final adjudication on merit by the learned Judge in the earlier proceeding. Hence, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position to deposit the entire claim to show their bona fide so that we could relegate the parties to the suit. He did not give any positive reply that would suggest insolvency of the respondent. If we look at the problem from a different angle we would find the same answer. The learned Judge specifically granted liberty to the appellant to bring fresh action. The respondent contended, it could not be the winding up proceeding. Giving credence to such argument, even if we assume, the respondent was precluded from doing so, the suit, he would file on the self same cause of action, would also result to an obvious decision against the respondent as the respondent could not raise any plausible defence. In fact, we do not find any defence at all, such suit would automatically succeed. Process of winding up is a statutory remedy, any unsecured creditor can avail such remedy. Learned company Judge would have wide discretion to deal with the proceeding. Even if His Lordship is satisfied as to the claim he would still deny the ultimate relief if the order of winding up would unfairly prejudice the shareholders,, creditors and workers at large. The order of winding up is passed not only aft ..... X X X X Extracts X X X X X X X X Extracts X X X X
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