TATA FINANCE LIMITED Vs. AKAI IMPEX LIMITED

JUDGEMENT

(1.) THIS is a company petition filed under Article 433 and 434 of the Companies Act seeking an order for winding up of the respondent company. According to the petitioner an amount of Rs.1,21,07,583.72 is due to the petitioner from the respondent company on account of discounted bills together with interest. As the amount was not paid by the respondent, a statutory notice was issued to the respondent by the petitioner, demanding the above referred amount. In reply to the statutory notice the respondent has not disputed its liability to pay the amount. Before me also, the learned counsel appearing for the respondent does not dispute the respondent's liability to pay the amount. The only dispute that appears to be between the parties that according to the respondent an amount of Rs.1,75,000/- was paid by cheque by the respondent to the petitioners. However, this statement is disputed by the learned counsel for the petitioners. All that the learned counsel for the respondent submitted is that the respondent is trying to get financial assistance from ICICI Limited and therefore, according to the respondent as the respondent is trying to restructure the loan through the ICICI Ltd., this petition should not be admitted.

(2.) THE learned counsel for the respondent also relied on the judgment of the Gujarat High Court is the case of Rishi Enterprises. In re. M.B. Shah J. (1992 Company Cases pg. 271). In the present case. I find that the debt is clearly admitted by the respondent company. The respondent has also clearly admitted its inability to pay the debts. It is pertinent to note here that the debt is due and payable from 1996 and except for saying that payment of Rs.1,75,000/- has been made there is no payment made to the petitioner by the respondent. In these circumstances, in my opinion this petition deserves to be admitted. However, considering that the respondent is trying to get its debts restructured in my opinion, three months time can be given to the respondent to deposit all the amount in this court. However, while granting time to the respondent for making the payments and for making the deposit, it cannot be forgotten that the amount is clearly due from the month of June 1996 and virtually no payment has been made by the respondent to the petitioner. In these circumstances, in my opinion, instead of admitting the petition straightway, an opportunity can be given to the respondent to deposit the total amount with in the period of three months from today. While making the deposit the respondent may deduct the amount of Rs.1,75,000/- which according to the respondent has been paid by the respondent to the petitioner after the statutory notice was issued. The petitioner would be free to take appropriate proceedings for recovery of the amount of Rs.1,75,000/- regarding which there is a dispute between the parties. In case the amount is so deposited this petition shall stand disposed of. In case the amount is not so deposited within the aforesaid period, this petition shall stand admitted. In case the amount is so deposited, the petitioner be permitted to withdraw the amount as there is no dispute between the parties that the petitioner is entitled to the amount. C.C. expedited.