TMI Blog2012 (9) TMI 1128X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 48.4 Lacs paid through three account payee cheques for ₹ 5 Lacs, ₹ 25 Lacs and ₹ 18.4 Lacs respectively. Upon receipt of the entire consideration the respondent duly conveyed the flat in favour of the appellant through a registered Deed of Conveyance. The first cheque of ₹ 5 Lacs was honoured by its banker. It is contended by the respondent, on the request of the appellant two cheques of ₹ 25 Lacs and ₹ 18.4 Lacs were not presented in the bank for some time as they were in financial difficulty. Ultimately, on presentation, those two cheques were dishonoured by the banker on January 10, 2011 and the cheques were returned on the next day. The respondent issued a notice of demand under section 138 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, this appeal before us. At the stage of admission, we enquired whether the appellant was in a position to secure the claim. The answer was in the negative. Today at the hearing of the appeal, Mr. S.N. Mitra, learned senior Counsel appearing for the appellant, reiterates on that score. On enquiry we come to know that the company, although a non-banking financial institution, does not have any asset except the office premises mentioned above, that too, mortgaged with the State Bank of India. Mr. Mitra also informs this Court on instruction, they do not have sufficient funds in their bank account. On factual matrix, Mr. Mitra contends before us that the winding up petition was not maintainable in view of the fact that the petitioning credito ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reliefs claimed in both the proceedings are distinct, although based on identical cause of action. According to her, in the suit the respondent claimed cancellation of a document whereas the winding up petition was based on presumption of insolvency as the company failed and neglected to make good the amount covered by the dishonoured cheques. 3. Mr. Mitra cites three decisions to support his contentions. Ms. Bhuteria distinguishes the same. In the case of Euro Containers vs. Morepen Laboratories Limited reported in (2007) Volume 138 CC 422, the Division Bench of the Himachal Pradesh High Court declined to interfere with the order of the learned Single Judge dismissing the winding up petition considering the fact that a civil suit w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is satisfied that the dispute raised by the company is bona fide and there is every likelihood that such claim could be effectively resisted by the company. Mere pendency of a civil suit on the self-same cause of action, in our view, would not ipso facto make a winding up petition not maintainable. In this regard we would refer to a decision in the case of Central Bank of India vs. Sukhani Mining and Engineering Industries Pvt. Ltd. and Ors. reported in Volume 47 Company Cases 1. The learned Single Judge of the Patna High Court observed, there is no such provision, the reason being that a winding up proceeding is not merely for the benefit of the petitioner but of all shareholders, creditors or contributories of the company. Therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
