PODAR MILLS LIMITED Vs. J K SYNTHETICS LIMITED

JUDGEMENT

(1.) The present appeal is from an order dismissing Judges Summons taken out by the appellants for stay of all further proceedings in Company Petition No. 352 of 1983 and for restraining the respondents from taking any further steps in the Company Petition.

(2.) On 23rd June, 1983 the respondents filed a petition for winding up the Appellant Company. On 14th September, 1983 consent terms were filed in Company Petition under which, inter alia, the Appellant Company admitted the claim of the respondents and agreed to pay the claim amount by monthly instalments. Under Clause 4 of the consent terms it was provided as follows:

(3.) In the event of the Company failing to pay any three instalments or the last instalment on its due date as mentioned hereinabove the petition do stand admitted and the petitioners to give advertisement thereof in the Free Press Journal , Bombay Samachar and Maharashtra Government Gazette. The petition to be made returnable four weeks after the last advertisement is published. The first Instalment became payable on 20th September, 1983. This instalment was sent by the appellants along with their registered letter on 21st September, 1983. It was received by the respondents only on 28th September, 1983, There is also some dispute about the quantum of this instalment (which need not be gone into at this stage). The Next instalment was on 20th October, 1983 On 18th October, 1983 the Textile Undertakings (Taking Over of Management) Ordinance came into force. This Ordinance was later replaced by the Textile Undertakings (Taking Over of Management) Act of 1983. The Act was passed on 25th December, 1983 but deemed to have come into force on 18th October, 1983. In view of the provisions of the Textile Undertakings (Taking Over of Management) Act, 1983 the Management of two undertakings of the appellants which are described at items 9 and 10 of the first schedule to the said Act, have been taken over by the custodian appointed under the said Act as per the provisions of the said Act. The appellants thereupon did not pay the 2nd and 3rd instalments which fell due under the consent terms on 20th October, 1983 and 20th November, 1983. The respondents then addressed a letter dated 21st November, 1983 to the appellants pointing out, inter alia, that the appellant had committed three defaults in payment of instalments under the consent terms. In view of the provisions of Clause 4 of the consent term, they contended that the petition stood admitted and the respondents were entitled to advertise the petition as provided in the consent terms. The appellant took out a Judges summons on 19th January, 1984 being Company Application No. 12 of 1984 for stay of further proceedings in the Company petition.