TMI Blog1990 (5) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... 9-12-1986, besides sending several notices dated 7-7-1987, 7-8-1987 and 6-1-1988. Since Rim did not raise any dispute, but pleaded its inability to pay and for time, Tube had come forward with CP No. 64 of 1988 on 18th July, 1988 for winding-up Rim on the sole and lone ground of its failure invoking the presumption under section 434(1) of the Companies Act, 1956. 2. Tube filed CA No. 606 of 1989 for appointment of a provisional liquidator and the same was allowed as prayed for by an order dated 12-9- 1989 appointing the official liquidator of the Court as provisional liquidator. Aggrieved by that order, Rim agitated the mailer in OSA No. 301 of 1989 and CMP No. 12457 of 1989 for stay of all further proceedings in CA No. 606 of 1989 pending disposal of OSA and the Division Bench of this Court, on 5-10-1989, granted stay of further proceedings on condition of Rim depositing a sum of ₹ 4 lakhs to the credit of OSA on or before 19-10-1989. Thereafter, Rim filed CMP No. 12892 of 1989 praying to modify the order dated 5-10-1989 and made in CMP No. 12457 of 1989 by extending the time for depositing the amount and as a matter of fact, the Division Bench made the interim stay absol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e amendment sought for is allowed, there may not be any need to consider the arguments hinging on the question of maintainability of the main company petition. In this view of the matter, the plea raised for amendment of the company petition and consequent arguments advanced thereon, may fall for consideration in the area of discussion first and foremost. 8. As referred to earlier, the amendment sought for revolves on the admission of liability in a specified sum by Rim and the factual situation that came to light too for incorporation of such materials by way of averments in the main petition for winding-up under the just and equitable clause. The timing of this application, in the circumstances of the case, assumes paramount importance. 9. The reason given for the amendment is not that the factual situation had arisen ex improvise, in the sense of the same not having been in contemplation at the time when the company petition had been filed. But, what had been stated is that by 'oversight', the incorporation of such materials in the petition bad been omitted, although the petition had been captioned under sections 433(e) and (f) of the Companies Act, 1956. This anal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces of the case. A new case would be allowed to be projected by Tube, if the amendment sought for is allowed, changing the entire complexion of the proceedings. Case law, in the shape of innumerable decisions had been cited before me on this aspect of the matter, which I feel need not be enumerated here, as the decisions arrived at in those cases are applicable to the facts and circumstances narrated, therein and also not exactly similar to the case on hand. The amendment relief is a discretionary remedy and the Court has to be guided by well-recognised judicial principles in exercise of such discretion, taking into consideration the special circumstances and facts of the particular case and in this view of the matter, on the facts of this case, I am of the view that the amendment sought for, if allowed, is likely to spell disastrous consequences in causing prejudice to the cause of justice in affecting to a very great measure, the interest of Rim. As such, the amendment application deserves to be dismissed. 11. The edifice or the basis on which the company petition is rested for winding-up Rim is that Rim neglected to pay the amount due by it to Tube within a period of three w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their books, the outstandings are about ₹ 9.5 lakhs only. On 7-8-3987, Tube again sent a communication claiming the sum as demanded in the earlier statutory notice dated 30-10-1986 and further interest, failing which they will be constrained to take legal proceedings. Despite existence of such a dispute between them, it appears that there was a trade resumption after an amicable understanding between them and this aspect of the matter is revealed by the letter dated 18-8- 1987 sent by Rim to Tube, which is not at all disputed. Rim on 12th August, 1988 also sent a letter that their liability without interest amounted to only ₹ 7,86,800.74 and making an earnest request not to charge any interest for the sum due by them. Again on 7-2-1989, Rim sent a letter to Tube making a pointed reference to the discussion its representative Mr. M.V. Raghunathan had with them and gave the act amount due by them as ₹ 8,55,781.12, inclusive of interest. Thus, the exchange of correspondence between them points out in unequivocal terms that there is a bona fide claim of dispute with regard to the amount due by Rim to Tube, about which a topsy-turvy picture had been painted in the main ..... X X X X Extracts X X X X X X X X Extracts X X X X
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