Calcutta High Court
Payment By The Company To The vs Jmd Medicare Ltd.' Reported At ... on 5 July, 2016
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
CP No.90 of 2014
IN THE HIGH COURT AT CALCUTTA
Original Jurisdiction
ORIGINAL SIDE
RE: M/S BRG IRON & STEEL PVT LTD
-AND-
NILACHAL REFRACTORIES LTD
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 5th July, 2016.
Appearance:
Mr. Vikas Baisya, Adv.
Mr. Arif Ali, Adv.
Mr. Niladri Banerjee, Adv.
Mr. U.S. Menon, Adv.
Mr. Mainak Bose, Adv.
Mr. Siddhartha Chatterjee, Adv.
Mr. Shouvik Ray, Adv.
The Court : The company has suffered an order of winding up by reason of failure
to comply with the order dated 7th December, 2015.
Although, the company was not represented on 7th December, 2015, a Coordinate
Bench of this Court, on consideration of the affidavit filed on behalf of the company has
admitted the winding up petition for a principal sum of Rs.31,45,639/- together with
interest at the rate of 8% thereon from February 4, 2013, which is the last date of part
payment by the company to the petitioner. It was further recorded that if the company
pays off the amount found due by this order, together with interest and costs assessed
at 1500 GMs, within four weeks of the receipt of a written demand from the petitioner
appending a copy of this order, the petition will remain permanently stayed. In default,
order for publication was made.
The company filed an application for recalling of this order. The said application
for recalling was dismissed on 8th February, 2016.
2
Mr. Mainak Bose, learned counsel, submits that there is a change of management
and as a result whereof, the company is not in a position to reconcile the amount. Mr.
Bose, learned counsel, has relied upon a Coordinate Bench decision of this Court in
'Siemens vs. JMD Medicare Ltd.' reported at [2008]142 Comp Cas 475 (Cal) and submits
that the company was not precluded to dispute the debt and it would be open to the
company to demonstrate that there were other materials to question the indisputable
character of the debt and the Court may in appropriate situation revisit the issue. The
said decision, however, has not taken into consideration by a Division Bench of this
Court in 'Khaitan Paper Industries Pvt. Ltd. vs. M/s. Wires and Products (SA) Ltd' dated
10th February, 1999, where it was observed by the Hon'ble Division Bench that if a
petitioning creditor files a winding up petition on the ground that the company is unable
to pay its debts and the company opposes the application by filing an affidavit seeking to
establish before the Court that the debt was a disputed one and the Court comes to a
conclusion that the company's dispute is not a bona fide one, it must be held that the
finding as to the existence of the debt by the Court is a final one. In fact, the application
filed by the company for recalling of the order admitting the winding up was also
dismissed.
Be that as it may, there cannot be any doubt that by reason of the email dated
28th November, 2011, there has been an acknowledgment of liability to the extent of
Rs.43,66,304/- out of which some part payment was made and on adjustment, the
Coordinate Bench had admitted the winding up petition for a sum of Rs.31,45,639/-.
The matter has come after advertisement. In the meantime, the company has entered
into arrangements with regard to the other creditors and there are existing orders by
which the company was directed to pay off the dues quantified by the orders of this
Court. In view of the fact that the company is willing to pay the other creditors, the final
order of winding up without giving a further opportunity to the company to pay off the
3
dues would not be beneficial. The company shall pay the principal sum of
Rs.31,45,639/- together with interest at the rate of 8% thereon from 4th February, 2013
along with costs assessed at 1500GMs. within a period of four months from the date of
communication of this order, failing which the Official Liquidator attached to this Court
shall take possession of the Company.
In terms of the order dated 3rd March, 2016, the company had deposited a sum of
Rs.10 lakhs with Mr. U.S. Menon, learned advocate, who was appointed as a Special
Officer for the purpose of holding the said amount. The Special Officer has deposited the
amount in an interest bearing fixed deposit account. The fixed deposit is going to
mature on 21st September, 2016. The Special Officer shall disburse the amount on
maturity in the manner following:
1.Medicarrier Pvt. Ltd. - 3 lakhs
2. Nilachal Refratories Ltd. - 3 lakhs
3. Mulayil Verghese Francis - 3 lakhs
4. Crompton Greaves Ltd. - 2 lakhs.
Upon disbursement, the Special Officer shall stand discharged. However, it is made clear that on the date of maturity, if anyone of the creditors have been fully paid then the share of such creditors payable in terms of this order shall be returned to the Company. This order shall also govern the modes of payment in relation to CP No.567 of 2013, CP No.90 of 2014, CP No.450 of 2014 and CP No.571 of 2014.
A copy of the fixed deposit receipt is kept with the record.
(SOUMEN SEN, J.) B.Pal