NANDLAL VITHALDAS Vs. HINDUSTAN FIBRES LTD

JUDGEMENT

(1.) HEARD learned counsel for the petitioner.

(2.) THIS company petition is filed under Sections 433, 434 and 439 of the Companies Act, 1956 (for short, 'the Act of 1956').

(3.) FROM the document annexure 1, the ledger for the period from April 1, 2000, to March 23, 2002, 1 find that this sale of the cotton bales was there earlier to April 1, 2000. From this ledger it is also clear that from time to time the amount has been paid. The last payment has been made as per the petitioner's own case in October, 2000. The cheques were also issued. The aforesaid cheque is said to be dishonoured but it is a fact that the petitioner has not taken any action against the respondent -company under Section 138 of the Negotiable Instruments Act. In the facts of this case, I am satisfied that this petition is nothing but appears to have been filed to put a pressure on the respondent -company to pay the amount. Winding up proceedings are not available for the recoveries of the payment of the bills. From October 21, 2000, the respondent -company is not paying anything, There was ample time to the petitioner to file the suit. In such matters, in case the petitioner really wanted to realise this amount, the proper remedy would have been to file a summary suit. In winding up petition what will he gets. The petitioner is not a secured creditor and thus even if the company is ordered to be wound up, I have my own experience, it is difficult to get a single pie by the petitioner. If we go by this fact, this winding up petition is nothing but only a pressure tactics or an attempt has been made for recovery of this amount and that too without paying the court fees. In the suit, the court fees is to be paid. In the summary suit, it is not more res integra that unconditional leave to defend the case is granted only in case the plausible defence is available. This winding up petition is nothing but only an attempt to circumvent the remedy of civil suit.