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1 - 8 of 8 (0.22 seconds)Section 439 in The Companies Act, 1956 [Entire Act]
The Companies Act, 1956
Section 433 in The Companies Act, 1956 [Entire Act]
Canfin Homes Ltd. vs Lloyds Steel Industries Ltd. on 30 March, 2001
"9. The submission in support of the Appeal is that as
a secured creditor, it was the obligation of the
Respondent to disclose before the Company Court,
3 2013(3) ALL MR 379
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when the Petition for winding up came up for final
hearing as to whether the Respondent chose to enforce
her security by standing outside the winding up
proceedings or, whether the Respondent wished to
stand together with the general body of creditors for
realisation of her dues. Now in considering the
submission, it must be noted at the outset that a
Petition for winding up can be maintained at the behest
of a creditor, whether secured or unsecured. This is
evident from the provisions of section 439(1)(d). Under
sub-section (2) of section 439, among others, a secured
creditor is to be deemed to be a creditor within the
meaning of clause (b) of sub-section (1). This position
has been enunciated in a judgment of the Company
Judge of this Court in Canfin Homes Ltd. v. Lloyds
Steel Industries Ltd. 2001 (4) Bom.C.R. 84 : [2002(1)
ALL MR 901].
Bharat Overseas Bank Ltd. vs Shree Arcee Steels P. Ltd. on 21 March, 1985
In fact, the
judgment of the Division Bench in Bharat Overseas
Bank Ltd.'s case follows the consistent principle of law
which has been laid down by the Madras and Calcutta
High Courts as noted earlier.
Techno Metal India (P.) Ltd. vs Prem Nath Anand on 17 August, 1973
Ltd. v. Prem Nath Anand
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1973 (43) Com 556.
Karnatak Vegetable Oils And Refineries ... vs Madras Industrial Investment ... on 4 December, 1953
In a judgment of a Division Bench of the
Madras High Court in Karnatak Vegetable Oils and
Refineries Ltd. v. Madras Industrial Investment
Corporation Ltd., AIR 1955 Mad 582. consisting of
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Rajamannar, C.J. & Rajagopala Ayyangar, J., it was
held that it was well-established that a secured creditor
is as much entitled as of right to file a petition for
winding up as an unsecured creditor. The judgment of
the Madras High Court is also authority for the
proposition that the rule in bankruptcy that before a
secured creditor can file a petition for insolvency he has
to abandon his security or to value the security and
aver that after giving credit to such value there would
be a balance due and payable to him, does not apply in
winding up. The Madras High Court held that the
general rule is that a creditor who cannot get paid has a
right to a winding up order, whether he be a secured or
an unsecured creditor. However, this right of the
creditor is always subject to the discretion of the Court
and the Court may in an appropriate case refuse to
make a winding up order, having regard to the wishes
of a majority of the creditors. A similar view has been
taken by a Division Bench of the Calcutta High Court
in Techno Metal India (P.)
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