1. Since both the applications, C.A. No.58 of 2017 and C.A. No.119 of 2017 involve the same set of facts, the same are disposed of by this common order.
2. The applicant in C.A. No.58 of 2017, as a petitioning creditor, filed the said application under Section 434(e) of the Companies Act (in short "the Act of 1956") for winding up of the respondent-company on the ground that the latter failed to pay its dues on account of transportation charges. However, the respondent company contested the winding-up application by an order dated March 26, 2015 a learned Single Judge of this Court admitted the winding-up application against the respondent company for the principal amount of Rs. 5,15,31,045/- together with interest thereon at the rate of 6% per annum, to be calculated from the date of the statutory notice
Please Login To View The Full Judgment!
till the date of actual payment. By the said order the learned Single Judge, however, directed that if the company pays off the entire amount together with interest to the petitioning creditor, within a period of a fortnight from the date the winding-up application would remain permanently stayed and in default the application would be advertised in the newspaper. The company carried out the said order dated March 26, 2015 in appeal, being A.C.O. No.45 of 2015, A.P.O.T. No.38 of 2015. In the said appeal by an order dated April 17, 2015 the Division Bench recorded that the company had admitted its liability to pay Rs. 3.50 crores to the petitioning creditor. Based on such admission of the company the Division Bench directed the company being the appellant to pay the said amount of Rs. 3.50 crores to the petitioning creditor by way of instalments. The Division Bench directed that subject to the payment of the instalments by the company the order of admission would remain stayed but in default of payment of any of the said instalments the stay would stand vacated and the petitioning creditor would be free to advertise the notice of winding-up proceeding in terms of the directions passed by the learned Single Judge. The Division Bench further held that in case the company makes payment of the instalments, as directed in the said order, the order of stay would continue and the fate of the disputed sum would be decided at the time of hearing of the appeal. However, the company did not make payment of all the instalments in terms of the said order dated April 17, 2015 and ultimately on September 18, 2015 the Division Bench of this Court dismissed the appeal filed by the company. An application filed by the company for review of the Division Bench order dated September 18, 2015, being R.V.W.O. No.28 of 2015 was also rejected but the company did not challenge the said order dated August 4, 2016 before any superior forum. Therefore, the liability of the company to pay the principal sum of Rs. 5,15,31,045/- together with interest thereon, as directed by the order dated March 26, 2015 passed by the learned Single Judge while admitting the winding-up application attained finality.
3. In spite of dismissal of the aforementioned appeal and its liability to pay the dues of the petitioner in terms of the said order dated March 26, 2015 having attained finality, the company did not make any further payment to the petitioning creditor.
4. Under such circumstances, the petitioning creditor filed an application being C.A. No.58 of 2017 praying for, inter alia, an order directing the company to make payment of the outstanding amount of Rs. 3,82,407.41 to it in terms of the said order dated April 17, 2015, and that leave be given to it for advertisement of the winding-up petition in the newspapers. The company also filed an application being C.A. No.119 of 2017 praying for, inter alia, an order for permanent stay of the winding-up proceeding and to allow it to pay the admitted dues to the petitioning creditor by suitable instalments. It appears that both the applications were heard by a learned Single Judge of this Court and from time to time various orders were passed therein. Although by an order dated March 9, 2017 the petitioning creditor's prayer for extension of time to publish the advertisements of the winding-up application was extended but by subsequent orders the company was allowed to pay various amounts by way of instalments and the petitioning creditor was directed to cause publication of the advertisement of the winding-up application.
5. Today, both the applications are taken up for hearing.
6. Mr. Banerjee, learned Senior Advocate appearing for the petitioning creditor, submitted that after taking into consideration all the payments made by the company to the petitioning creditor as per the order of admission dated March 26, 2015, Rs. 2,80,40,089/- remained outstanding as on December 15, 2017 and today the petitioning creditor has been informed that the company has deposited Rs. 20 lakhs in the bank account of the petitioning creditor through RTGS. Thus, according to Mr. Banerjee, as on today Rs. 2,60,40,089/- still remains due and outstanding by the company to the petitioning creditor and as such the prayer of the petitioning creditor for causing advertisements of the publication, the winding-up application of the company should be allowed.
7. On the other hand, Ms. Kajaria, learned Advocate appearing for the respondent-company, submitted that in the appeal before the Division Bench the company had admitted its liability to pay Rs. 3.50 crores only to the petitioning creditor and the liability of the company to pay the balance amount of Rs. 1.65 crores is to be adjudicated by this Court and without such adjudication the petitioning creditor is entitled to obtain any order in its application. Ms. Kajaria further submitted that in order to prove the bona fide on the part of the company, even on January 16, 2018 it has paid Rs. 20 lakhs to the petitioning creditor. Urging these grounds, the company prayed for dismissal of the present application of the petitioning creditor and prayed for a direction to allow it to pay the balance of the said admitted amount of Rs. 1.65 crores by way of suitable instalments.
8. Having considered the facts of the case, as discussed above, I find that when the appeal being A.C.O. No.45 of 2015, A.P.O.T. No.138 of 2015 filed before the Division Bench stood dismissed and the same remain unchallenged before any superior forum, the right of the petitioning creditor to obtain payment of the principal amount of Rs. 5,15,31,045/-, together with interest thereon at the rate of 6% per annum from the date of the notice issued under Section 434 of the Act of 1956 till the date of actual payment has attained finality and this Court does have any scope to deviate from such finding.
9. Admittedly, the company has failed to pay the entire amount as directed by the said order dated March 26, 2015 and as on today Rs. 2,60,40,089 still remains outstanding from the respondent company to the petitioning creditor.
10. For the above grounds, the application of the petitioner being C.A. No.58 of 2017 succeeds. The time for publication of the advertisement of the winding-up application, in the newspapers mentioned in the order dated March 26, 2015, is extended till February 9, 2018. The application, C.A. No. 49 of 2017 stands rejected.
11. Although the application, C.A. No.119 of 2017 stands rejected but, in the interest of justice an opportunity is granted to the company to pay Rs. 2.60,40,000/-(Rupees Two Crores Sixty Lakhs and Forty Thousand only) to the petitioning creditor, by way of full and final settlement of its dues, within February 1, 2018.
12. If, the company pays the aforementioned amount to the petitioning creditor within February 01, 2018 the petitioning creditor shall not cause advertisement of the winding-up application and the winding-up application shall remain permanently stayed.
13. With the above directions, both the applications being C.A. No.58 of 2017 and C.A. No.119 of 2017 stand disposed of.
14. However, there shall be no order as to costs.
15. Urgent certified Website copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.