SUVARN RAJARAM BANDEKAR Vs. RAJARAM BANDEKAR (SIRIGAO) MINES

JUDGEMENT

(1.) Company Petition No. 4-R of 1992, is by a creditor for winding up of the company, Rajaram Bandekar (Sirigao) Mines Pvt. Ltd., under sections 433 and 434 of the Companies Act, 1956. It is averred in the petition that the company is indebted in the sum of Rs. 38,96,460 as on February 23, 1992, being the amount due under a decree of the Civil Court, Vasco da Gama, dated April 12, 1991, made in Special Civil Suit No. 36 of 1990. According to the petitioner, the company was directed to pay to the petitioner a total amount of Rs. 66,48,252.04 by way of instalments on dates set out in Schedules I and II annexed to the petition and that the company defaulted in payment of the second instalments of payment of Rs. 5,40,000. The company was called upon to pay the defaulted instalment by a notice dated August 9, 1991, but under the reply of the company dated August 19, 1991, the company whilst not denying that the instalment had not been paid, denied that there was any default and otherwise denied that the provisions of section 434 can be invoked by the petitioner. In the meantime, some more instalments were paid by the company, but the eight instalment due on December 31, 1991, was not paid and the company invoked the jurisdiction of the civil court to extend time for payment of the instalments due upon the decree. It is also the case of the petitioner that in terms of clause 13 of the consent decree default in payment two instalments make the entire balance amount payable forthwith and as the company failed to effect payment of two instalments, the entire amount under the decree is payable, together with interest at the rate of 18 per cent. per annum payable thereon. Statutory notice under section 434 of the Companies Act, 1956, dated January 1, 1992, was served and despite calling upon the company to pay the amount due within three weeks from the receipt of the said notice, the company did not company with the same. In the meantime, it appears that the company took out another application before the civil court dated January 11, 1992, which had decreed the suit for a declaration that the company had not committed default under the decree. The application for extension of time and the application for a declaration that the company has not committed default under the decree are said to be attempts by the company to create a sort of an apparent shield to somehow get over the default committed and, therefore, those applications are dubbed to be frivolous. According to the petitioner, from the facts stated in the petition, it is clear and transparent that the company is unable to pay its debt and/or is insolvent and hence sought an order for winding up the company.

(2.) Upon giving notice to the company, the company after obtaining time for filing an affidavit-in-reply replied to the application for winding up on April 23, 1992. Upon filing an affidavit-in-rejoinder by the petitioner, the company filed its affidavit in surrejoinder some time on July 31, 1992. For want of time, the petition could not be taken up for admission, though it came on board. Company Application No. 26-R of 1992 was instituted by the company on October 6, 1992, for chamber summons with a prayer that the company petition be rejected in limine and pending the hearing and final disposal of the application all further proceedings in the petition be stayed. Notice of this application was given to the petitioner who has vehemently opposed the company application on the ground that the same is nothing but a gross abuse of the process of the court having been filed with the mala fide and ulterior notice of delaying the hearing of the company petition which is pending. Even otherwise, according to the petitioner, the application does not disclose any grounds to justify the filling of such an application, as the grounds set out in the affidavit in support are nothing but in the nature of defences which are in fact taken in the affidavit-in-reply filed by the company to the winding up petition.

(3.) Mr. Kakodkar, learned counsel appearing for the company, urged that the company petition cannot be taken up by this court unless and until the company application is disposed of. According to him, the company application is required to be decided at the threshold, for it the company application is allowed and the summons is made absolute, there can be no hearing of the company petition on the merits. He, therefore, took umbrage to both the petitions being placed on the board together.