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M/s Himatsingka Chemicals Private Limited and M/s P.H. Trading Limited Versus M/s Dynamic Herbikem India Private Limited

2015 (3) TMI 1162 - CALCUTTA HIGH COURT

Winding up petition - Claim for balance outstanding - on account of supply and on account of Sale Tax due to non-submission of C Form - Appellant supplied goods and received part payment - Held that:- whether the claim is just and without any defence, is examined by the Company Judge applying the principles that the Court would adopt in an action under Order XXXVII of the Code or Chapter XIII A of the Rules of this Court in its Original Side. Applying such principles of law, the Court may not .....

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claim, so, the winding up petition is liable to be admitted. - Appeal disposed of - A.P.0. No. 4 of 2015, C.P. No. 694 of 2014, A.P.0. No. 5 of 2015, C.P. No. 695 of 2014 - Dated:- 31-3-2015 - Ashim Kumar Banerjee and Samapti Chatterjee, JJ. For The Appellant : Mr. Reetabroto Mitra, Advocate, Mr. Supratim Laha, Advocate, Ms. Saroj Tulsian, Advocate, Ms. Pryanka Keshan, Advocate For The Respondent : Mr. Probal Mukherjee, Senior Advocate, Mr. Pradip Kumar Bose, Advocate, Ms. Gargi Pattanayak, .....

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the goods as per requisition and received payments in part. After giving credit to the sums already received Himatsingka Chemicals Private Limited found a sum of ₹ 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 ₹ 51,696/-. Himatsingka Chemicals Private Limited issued a statutory notice of demand intending to apply for wind .....

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berty 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 by a petition for winding up being C.P. no. 694 of 2014. The learned Company Judge dismissed the second application on the ground, it was not maintainable as being hit by res judicata. The relevant extract of the order of the learned Single Judge is quot .....

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advised. Now, on the same cause of action, the petitioning creditor has approached this Court once again, citing a second statutory notice. There cannot be any iota of doubt that this application is barred by the principles of res judicata. Even if, the second statutory notice was issued by the petitioning creditor, the cause of action remains unchanged since the latter statutory notice reflects the same claim of the petitioning creditor as stated in its first statutory notice. In such circumst .....

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there was no decision on merit in the earlier petition the plea of res judicata would not be available. Moreover, the new winding up petition would have a distinctive feature as the claim for sales tax was subsequently added. Per contra, Mr. Prabal Mukherjee learned senior Counsel appearing for the respondent would dispute the claim. Mr. Mukherjee would submit, there was fruitful hearing of the first winding up petition when the appellant by their own choice, allowed the petition to be dismisse .....

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entions: 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 .....

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ensive claim against the other covering both the transactions. If they do not want to do so, they must specifically and reserve their liberty to go for the other in a separate proceeding. Otherwise, the second proceeding without reservation of such liberty would be invalid. Any final decision and/or adjudication of any dispute would prevent repetition of the identical grievance brought subsequently in a Court of law. If someone wishes to withdraw the litigation by reserving his liberty to bring .....

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would prevent the subsequent action on the identical issue to be raised before the court once again. This is our understanding of the law as we gather by looking to the various provisions of Code of Civil Procedure that would include Section 11, Order II Rule 1 and 2 and Order XXIII Rule 1 of the Code. Section 11 would deal with the aspect of res judicata that, inter alia, prevents any court to try any issue which was directly or substantially in issue in a former litigation between the same par .....

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n case of omission to bring any other relief, subsequent action would be invalid unless a specific liberty was reserved and obtained by the plaintiff while filing the former suit. APPLICABILITY OF LAW IN THE PRESENT SCENARIO: 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 .....

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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 our considered view, and with all humility, may we say, the learned Judge was per .....

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sure whether the appellant prayed for liberty to file a fresh winding up proceeding and if so, whether the learned Judge granted so. As observed earlier, none of the parties would highlight on this aspect. Looking to the order permitting the appellant to withdraw the winding up proceeding with liberty to bring action in accordance with law, we feel, the subsequent action would be valid. The matter would rest here, if we send it back to the learned Judge on merits. However, to avoid unnecessary d .....

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nged by the respondent, right from 2012, would raise no dispute at any point of time. We would find, one Dilip Choudhury was dealing with the matter. He resigned from the Board. Hence, the respondent was handicapped to examine the veracity of the claim. Right from 2012 to the last correspondence referred to above during the pendency of the appeal, would suggest, the respondent way buying time. The reply to the statutory notice of demand would make a vague denial without any specific observation .....

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ent. 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 pl .....

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only after being satisfied with the just debt but also looking to all aspects pertaining to the company. Whether the claim is just and without any defence, is examined by the Company Judge applying the principles that the Court would adopt in an action under Order XXXVII of the Code or Chapter XIII A of the Rules of this Court in its Original Side. Applying such principles of law, the Court may not admit the winding up petition, once it is satisfied, the claim is bona fide disputed, when the Cou .....

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admitted. RESULT: The appeals succeed and are allowed. The judgment and order of the learned Judge impugned herein is set aside. The winding up petition being CP No.694 & 695 of 2014 are admitted subject to scrutiny by the department. C.P. No. 694 of 2014: The appellant would be entitled to advertise the notice once in Times of India and once in Bartaman, publication in Calcutta gazette is dispensed with. Publication would, however, not be made in case the respondent would pay the principal .....

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