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2012 (5) TMI 773

t 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 facts and circumstances of the case, we are of the opinion that direction for payment of interest at the rate of 6% per annum from the date of filing of the petition for winding up and till deposit of the principal amount of ₹ 50 lakhs by the respondent company in the Court would sub-serve the interest of justice and restitution. - Co. App. No.42/2012 - Dated:- 18-5-2012 - Mr. Rajiv Sahai Endlaw J. For the Appellants : Mr. .....

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. The learned Company Judge held that in jurisdiction of winding up, disputed questions of fact could not be adjudicated. It was however held that since it was the stand of the respondent company itself that the amount was towards share application money and since no shares had been issued, the money was nevertheless refundable. Though the counsel for the appellant, before the learned Company Judge also had relied on Vijay Industries (supra), but the learned Company Judge observed that in the absence of any written document specifying the rate of interest, 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 .....

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deed wrongly denied by the respondent company compelling the appellant to institute the petition for winding up and which itself dragged on for six years. The appellant cannot be relegated to the remedy of a civil suit qua interest to which he is entitled by way of restitution. We may notice that Justice 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 t .....

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