DIGITAL WORLD INDIA LTD., IN RE Vs. ABC

JUDGEMENT

(1.) By this petition filed under sections 433 and 434 of the Companies Act, 1956 ('the Act') the petitioner seeks and order of winding up against the respondent-company. According to the learned counsel for the petitioner, an amount of Rs. 8,98,098 was due to the petitioner from the respondent towards the loan advanced to the respondent. Therefore, statutory notice was issued. Though the statutory notice has been duly received by the respondent, there is no reply to the statutory notice. It was replied by letter dated 14-12-1996 by the respondent. In the said reply, the respondent undertook to pay Rs. 1 lakh by 24-12-1996 and an amount of Rs. 75,000 per week from 31-12-1996. The petitioner filed this petition as no payments as promised were made.

(2.) The learned counsel appearing for the respondent submitted before me that when the loan was advanced, the shares of the respondent-company were pledged with the petitioner as security of the loan. For recovery of the balance amount, the petitioner ought to have sold the shares. He invited my attention to the agreement between the parties. The learned counsel also submitted that out of the total amount after receipt of the notice, the respondent has paid Rs. I lakh to the petitioner.

(3.) Now, perusal of the agreement between the parties to which the learned counsel for the respondent invited my attention, shows that according to clause 2 of the agreement, the petitioner could have sold the shares which were pledged with the petitioner. However, the petitioner did not adopt that method for recovery of its dues. Instead, the petitioner issued statutory notice to the respondent in Sept., 1996. It is pertinent to note that if it was the case of the respondent that instead of demanding the balance amount, the petitioner ought to have sold the shares which were pledged with the petitioner, that stand could have been taken in the reply that was given to the statutory notice. However, that stand has not been taken in reply to the statutory notice. Instead, the respondent undertook to clear the balance. It is further to be seen that according to the agreement, it was not compulsory for the petitioner to sell the shares to recover the amount. No doubt, power was given to the petitioner to do so. Therefore, it cannot be said that the defence now set up by the respondent for not paying the amount which it had undertook to pay to the petitioner is bona fide and genuine. In these circumstances, in my opinion, interest of justice would be served by making the following order: