EURO CONTAINERS Vs. MOREPEN LABORATORIES LTD.

JUDGEMENT

(1.) WE have heard the learned Counsel for the parties and perused the impugned judgment dated 15th March, 2004 rendered by learned Single Judge of this Court whereby the winding up application filed by the appellant has been dismissed on the ground that the appellant has already instituted a suit for recovery of amount in question and the suit is pending disposal in the Civil Court. In taking this view, the learned Single Judge has been influenced by an earlier view expressed in a Single Judge judgment of this Court in the case of M/s. Azeet International Pvt. Ltd. v. Himachal Pradesh Horticultural Produce Marketing & Processing Corporation Ltd. reported in 1998 (2) Shim. L.C. 10.

(2.) WE have perused the aforesaid judgment in the case of M/s. Azeet International Pvt. Ltd. (supra) and find that indeed in that case the learned Single Judge has taken the view (in para 13 of the judgment) that the Civil Suit for recovery of the amount forming subject matter of winding up application stood filed already, and since the suit had been pending adjudication, the machinery for winding up could not be used merely as a means for realizing a debt which was disputed and had been subject matter of the suit. The following observations in M/s. Azeet International Pvt. Ltd. (supra) being apposite are quoted hereinbelow: There is yet another aspect of the case. Admittedly, a civil suit for the recovery of the amount, claimed in the present petition, has been filed by the petitioner company against the respondent company and such suit is pending adjudication. Under these circumstances, the machinery for winding up cannot be allowed merely as a means for realizing a debt, which is disputed and is subject matter of a suit. The High Court of Punjab and Haryana in State Trading Corporation of India Ltd. v. Punjab Tanneries Ltd. (1989) 66 Company Cases 634, also had declined to exercise the powers under Section 433 of the Act, in view of the fact that the petitioner therein had already resorted to a civil suit for recovery of the disputed debt.