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Bhajan Singh Samra Versus M/s Wimpy International Ltd.

2012 (5) TMI 773 - Delhi High Court

Entitlement to interest till the filing of the winding up petition - Held that:- Though the amount of ₹ 50 Lakhs was advanced by the appellant to the respondent company in the Year 1994 but the same was demanded from the respondent company only in the year 2002 and the winding up petition was filed only in the year 2006. Therefore we find ourselves unable to find the appellant entitled to any interest till the filing of the winding up petition. - Rate of interest - Considering all the .....

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r. Sudhir Nandrajog, Sr. Advocate with Mr. Manan Gupta, Ms. Deepali Sharma and Mr. Akhil, Advocates RAJIV SAHAI ENDLAW, J 1. The appellant impugns the order dated 06.03.2012 of learned Company Judge allowing the Co.Pet 246/2006 filed by the appellant for winding up of the respondent company by giving an opportunity to the respondent company to pay the principal amount of Rs.50,00,000/- (fifty lakhs), being the debt owed by the respondent company to the appellant (and which .....

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spute that the appellant had on 5th/8th December, 1994, advanced a sum of Rs.50 lakhs to the respondent. While the appellant claimed the transaction to be of loan, repayable with interest at the rate of 22% per annum, the respondent company took a stand that the said amount was paid as part payment towards the share application money and owing to the failure of the appellant to pay the balance, the shares remained to be issued. 4. The learned Company Judge held that in jurisdiction of .....

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erest, no direction for payment of any amount towards interest or of winding up for non-payment thereof could be issued. Liberty however was granted to the appellant to file a civil suit qua his claim for interest. 5. The Supreme Court in Vijay Industries (supra) held that Sec. 433 of the Companies Act does not state that the debt must be precisely a definite sum; that failure to pay the agreed interest or the statutory interest would come within the purview of the word debt ; that i .....

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tion. 6. The counsel for the respondent company has, of course, sought to oppose this appeal by challenging the very claim of the appellant to the principal amount even. However, the said part of the judgment of the learned Company Judge which is not challenged by the respondent company and which has attained finality and rather with which the respondent company has complied, is no longer open for being agitated. 7. Applying the aforesaid law laid down by the Supreme Court .....

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Y.K. Sabharwal speaking for this Court in Devendra Kumar Jain Vs. Polar Forgings & Tools Ltd. 49 (1993) DLT 552 had also opined that where the liability to pay the principle amount is not disputed, the creditor need not be forced to initiate separate litigation for recovery of interest amount and the interest amount can be determined by the Company Judge in the winding up proceedings and on the failure of the Company to pay that amount, the Company can be ordered to be wound up on .....

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