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2007 DIGILAW 559 (CAL)

Toplight Commercials Ltd v. Gatha Aparels Pvt Ltd

2007-07-25

PINAKI CHANDRA GHOSE, SANKAR PRASAD MITRA

body2007
Judgment :- (1.) THIS appeal is directed against an order dated February 7, 2007 passed by the Honble Company Judge whereby His Lordship admitted part of the claim of the petitioning creditor/appellant herein on account of maintenance charges with effect from December, 2005 till April, 2006 being a sum of Rs. 95,765/-and the petition is admitted with the said principal amount of Rs. 95,765/- together with interest at the rate of 8% per annum from the respective due dates. (2.) THE Honble Company Court also directed that if payment is made within three weeks, then the winding up petition should stand permanently stayed in case of payment, failing which the advertisement was directed to be published. The claim of the petitioner on account of electricity bills and reimbursement bills were relegated to a suit. (3.) THE petitioner/appellant filed the winding up petition against the company on the basis of the claim of the petition on account of electricity bills and reimbursement bills and maintenance charges. The company registered the said winding up petition on the ground that there was deficiency in the service rendered by the petitioner to the said Act. According to the petitioner, the shop rooms, each unit of the market has an independent sub-meter and the electricity charges are payable from the individual sub-meters. According to the petitioner, the bills were raised on the company and the company did not place any objection in respect thereof. (4.) ON the contrary, the company claimed that the company suffered loss and damages on account of the delayed opening of the mall and the amenities, which were agreed to be provided, were lacking and the petitioner disconnected the electric supply on April 30, 2006. The company also filed a suit before the alipore Court. (5.) IT appears from the facts of the case that the petitioner herein assigned its rights to collect the rent in favour of the Ultramarine Tracon Pvt. Ltd. which has its landlord and the agreement which was entered into between the parties, permits the petitioner to transfer or assign the petitioners right in favour of any other person. (6.) IT appears that the claim on the said three accounts, as claimed by the petitioner to the tune of Rs. 4,46,098/- upto April, 2006. It further appears that both the claims on account of electricity bills and reimbursement bills related to the supply of electricity. (6.) IT appears that the claim on the said three accounts, as claimed by the petitioner to the tune of Rs. 4,46,098/- upto April, 2006. It further appears that both the claims on account of electricity bills and reimbursement bills related to the supply of electricity. A fixed monthly amount of Rs. 34,760/- has been claimed on account of reimbursement bill. (7.) IT was pointed out before us that the Honble Company Court after going through the facts also held that the companys defence is not a complete answer to the argument of the petitioner but that cannot be conclusively pronounced upon in this company petition. Accordingly, His Lordship passed the said order. (8.) AFTER hearing the learned Advocate for the parties and after going through the materials on record, we do not wish to interfere with the order so passed by the Honble Company Court with regard to the maintenance charges being a sum of Rs. 95,765/- but the only question which has been put forward before us by Mr. Chatterjee, learned Advocate appearing in support of this appeal that the Court was not able to find out a defence to the claim of the company but found out that there is a chance to resist the claim in other forum even when the company has not been able to make out a case positively. Hence, he submitted that the Court must pass additional order before relegating a claim of the petitioner to a suit. (9.) THE learned Advocate appearing on behalf of the company, submitted that the Court rightly passed such order even if there is a chance of being successful in the suit, and furthermore, when a suit has already been filed by the company raising the disputes and, according to him, is not a moonshine lefence. In that case, the Court should not interfere with the order so passed oy the Honble Court. (10.) HENCE, in our opinion, it would be proper for us only to direct the company to furnish a bank guarantee in favour of the Registrar, Original Side, High court, Calcutta with regard to the claim of the petitioning creditor to the tune of Rs. (10.) HENCE, in our opinion, it would be proper for us only to direct the company to furnish a bank guarantee in favour of the Registrar, Original Side, High court, Calcutta with regard to the claim of the petitioning creditor to the tune of Rs. 3,12,027/- and the learned Advocate appearing in support of the company agreed to secure the said claim of the petitioning creditor before us and accordingly, we direct that the said claim of the petitioning creditor is also relegated to a suit and we direct the respondent company to furnish a bank guarantee for the said amount to the tune of Rs. 3 lakhs in favour of the registrar, Original Side, High Court, Calcutta within a period of ten weeks from date and the claim of the petitioning creditor/appellant herein to that extent is relegated to the suit. (11.) IN default of furnishing the bank guarantee and in default of payment of the amount so directed to be paid by the Honble First Court within a period of six weeks from date, publication should be made in the manner as directed by the Honble First Court. The petitioner is directed to file such suit within a period of 12 weeks from the date of this order. In default thereof the respondent shall be at liberty to pray for discharge of the said bank guarantee. (12.) THE application is thus disposed of. Undertakings discharged. (13.) BY consent of the parties, the appeal is treated as on the days list and is disposed of accordingly. Appeal disposed of.