Madhya Pradesh High Court
Laxmi Pipes And Fittings Pvt. Ltd. vs Punjab National Bank on 16 February, 2016
1
Company Appeal No.15/2015
16.2.2016
Shri Nisheet Wishard, learned counsel for the appellant.
Shri D.S. Panwar and Shri Singhal, learned counsel for
the respondent.
They are heard.
This appeal has been filed by the appellant under Section 483 of the Companies Act, 1956 against the order dated 28/09/2015, passed in Company Petition No.30/13, whereby the learned Company Judge has passed an order for winding- up of the appellant/Company and appointed the Official Liquidator for the winding-up proceedings.
Learned counsel for the appellant has submitted that the liability has not been admitted by the appellant. The Company is no longer a running concern and it has subleased the unit on 4/01/2013. Even the sublessee is not running the unit and the unit is lying closed. It is not in dispute that the appellant has taken action under Section the SARFAESI ACT by filing an application before the DRT and, thus, the present winding up petition was not maintainable.
He submits that all these facts has not been considered by the learned Company Judge while admitting the Company Petition and appointed the Official Liquidator.
To support the aforesaid, learned counsel for the appellant has drawn our attention to the decision of the Allahabad Bank v. Canara Bank & Anr. [AIR 2000 SC 1535]], Agarwal Industries Ltd., v. Golden Oil Industries (P) Ltd., [AIR 1999 BOMBY 361], Mediqup Systems Pvt. Ltd. v. Proxima Medical System G.M.B.H [ JT 2005 (3) SC 380], IBA 2 Health (I) Pvt. Ltd., v. Info-Drive Systems Sdn. Bhd. [AIR(SCW)-2010-0-6282/SCC-2010-10-553/MADLJ-2011-1-74 5, decided on 23/09/2010 in Civil Appeal No.8230 of 2010(arising out of S.L.P.(C) No.886 of 2010), European Metal Recycling Ltd. vs. Blue Precision Ltd., decided on 22/12/2009 in Company Petition No.153 of 2009, State Trading Corporation of India Ltd. Vs. Punjab Tanneries Ltd. decided on May, 19, 1989, J.C. Engineers P. Ltd., v. Kay Iron Works P. Ltd. & Anr., decided on 22/01/2009, Windson International v. H.M. Electricals P. Ltd., decided on March 20, 2008, Amalgamated Commercial Traders Private Ltd. v. ACK Krishnaswami, decided on 8/1/1965, Citation LAWS(SC)-1965-1-18/TLPRE-1965-0-25, Harinagar Sugar Mills Do. Ltd., Bombay v. M.W. Pradhan (Now G.V. Dalvi) (Court Receiver, High Court, Bombay, decided on 21st March, 1966 Citation : LAWS (SC)-1966-3-5/AIR(SC)-1966-0-1707, Aluminum Corporation of India Ltd. v. Lakshmi Ratan Cotton Mills Co. Ltd. decided on 28th July, 1969, Citation :
LAWS(ALL)-1969-7-7/TLALL-1969-0-37 and M/s Betul Oil Ltd. v. M/s Nova Trading Pvt. Ltd., decided on 14/09/2015 in Company Petition No.27/2013 and submitted that the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 confer exclusive jurisdiction in the Tribunal and the Recovery Officer in respect of debts payable to Banks and financial institutions and there can be no interference by the Company Court under Section 442 read with Section 537 or under Section 446 of the Companies Act, 1956. With the aforesaid, he prays that the impugned order be set aside.
In reply, learned counsel for the respondent has 3 submitted that the amount was taken from the different branch of the respondent/Bank. The respondents also admitted before the Company Judge that the liability of the Company is only limited to the extent of Rs.12 Crores and that the matter is already pending before the DRT and prayed for dismissal of the Company Appeal.
As per statutory notice dated 26/06/2013, the Bank had claimed the outstanding loan amount of Rs.29,79,75,448.89 MP. The appellant/ Company had taken a defense to deny the liability. The learned Company Judge, considering the aforesaid, gave a finding that the appellant/Company was extended the loan and credit facilities to the tune of Rs.2,562.76 Lacs by letter dated 25.2.2010 and it had utilized the same.
Learned counsel for the appellant/Company also admitted the existing liability to the tune of Rs.12 Crores . The learned Company Judge considering the aforesaid, has held that the appellant/Company has the liability to pay more than the statutory amount mentioned in Section 434 of the Act, which inspite of the service of statutory notice, the appellant has failed to pay/unable to pay the debt.
It is well settled that when exact amount of liability is in dispute but debt more than the requisite amount in terms of Section 434 of the Act is established, then winding up order is to be passed..
Here in the present appeal, the amount of Rs.12 Crores was more than the requisite amount in terms of Section 434 of the Act.
The earlier writ petition being W.P. No.9283/2012 was in respect of recovery of dues of the Sales Tax Authorities who 4 had issued Sale Proclamation for auction of the appellant's properties mortgaged with the respondent/Bank. Thus, the learned Company Jude has rightly held that the right of the respondent/Bank to file the present winding-up petition will not be forfeited.
In para 14 of order dated 28/09/2015, passed by the learned Company Judge in Company Petition No.30/2013, has considered the objection raised by the appellant/Company that he has taken action under the SARFAESI Act by filing an application before the DRT, therefore, the present winding-up petition was not maintainable. The learned Company Judge, relying on the decision of the Apex Court in the case of Allahabad Bank Vs. Canara Bank and another, AIR 2000 SC 1535 and order dated 20/11/2014, passed in Company Petition No.9/2011 in the matter of winding-up of M/s. Zoom Developers (Pvt.) Ltd. And UCO Bank, has held that the winding-up petition was maintainable and passed the following directions in Para 16, which reads as under:-
(1) Company Petition is admitted. Let the petition be advertised in accordance with the Rules.
(2) Considering the above circumstances, it is found that the petition has been presented on the ground that is just and equitable for passing an appropriate order of winding up. Accordingly I order winding up of the respondent-Company in accordance with the provisions of the Act rad with the Company Court Rules, 1949.
(3) Accordingly and with a view to enable this Court to pass a final winding up order as contemplated under Rule 282 of the Rules, Official Liquidator of this Court who becomes a Liquidator of the Company by virtue of Section 449 of the Act, is appointed as Liquidator of the Company. The Registrar of this Court to take steps as provided under Rule 109 of the Rules so that necessary orders as required under Rule 112 onwards can be passed by this Court, on the next date of hearing.5
On due consideration of the aforesaid, the winding-up proceedings is very much maintainable. The order passed by the learned Company Judge is just and proper. No case to interfere with the aforesaid order in this Company Appeal as prayed by the learned counsel for the appellant, is made out.
The Company Appeal filed by the appellant has no merit and is accordingly dismissed.
(P.K. Jaiswal) (Alok Verma)
Judge Judge
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