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2009 DIGILAW 503 (CAL)

Sidhartha Sarawgi v. Bliss Graphics Pvt. Ltd.

2009-07-13

BISWANATH SOMADDER, S.S.NIJJAR

body2009
JUDGMENT : - The Court: By consent of the parties the appeal is treated as on day's list and disposed of along with the application for stay with the following order: The instant appeal and the connected application for stay arises out of a judgment and order dated 02nd April, 2009, passed by a learned Single Judge sitting in company jurisdiction, in an application for winding-up filed under sections 433, 434 and 439 of the Companies Act, 1956, by the petitioning creditor, being the appellant herein. 2. By the order impugned, the learned Single Judge was pleased to admit the winding-up petition for a sum of Rs. 7,05.522/- and directed the company to make payment of the said sum in ten (10) equal monthly instalments and further held that the petitioning creditor would be entitled to seek interest against the company, in case of default in payment of instalments by the company. 3. The limited issue for which the petitioning-creditor/appellant has approached this Court, is for non-grant of interest on the admitted amount from the due date till payment. The learned Single Judge while admitting the winding-up petition had been pleased to hold that there was no manner of doubt that the claim made by the petitioning-creditor was absolutely genuine and that the company was under a legal obligation to satisfy the claim of the petitioning-creditor on account of monthly rent of the premises-in-question. However, so far as payment of interest was concerned the learned Single Judge had been pleased to hold that the petitioning-creditor would be entitled to seek interest against the company, only in case of default of payment by the company in terms of Court's order. According to the appellant, although it was admitted by the company that the sums were due from June, 2007, the learned Single Judge erred in law by not giving any direction upon the company for payment of interest upon the admitted principal amount, which the appellant calculated @ 24 % per annum on and from the due date. 4. We have considered the submission made by the learned Advocates appearing on behalf of the parties. A perusal of the judgment and order under appeal shows that the claim made by the petitioning-creditor was accepted as absolutely genuine by the learned Single Judge. 4. We have considered the submission made by the learned Advocates appearing on behalf of the parties. A perusal of the judgment and order under appeal shows that the claim made by the petitioning-creditor was accepted as absolutely genuine by the learned Single Judge. Therefore it was observed that the company was under a legal obligation to satisfy the said claims on account of monthly rent of the premises-in-question of which the company was a tenant under the petitioning-creditor. The learned Single Judge has also took note of the fact that even after service of statutory notice for winding-up proceeding, the company did not reply to such statutory notice. It had not raised any dispute regarding the claims of the petitioning creditor for payment of unpaid rents in any manner whatsoever. It further appears that the learned Single Judge rejected the attempt on the part of' the learned Counsel for the company to raise fictitious disputes at the time of hearing and observed that such disputes had no basis or rather, genuine basis whatsoever. The learned Single Judge while admitting the winding up petition for a total sum of Rs. 7.05,522/- directed the company to pay the said sum by ten (10) equal instalments. In case of default of payment of any single installment, the petitioning-creditor/appellant was given liberty to advertise within two weeks from the date of default and the matter was directed to appear in the list for further direction within two weeks from the date of advertisement. So far as payment of interest is concerned, it appears that learned Single Judge did not direct payment of any interest at the stage of passing the order, but gave liberty to the petitioning-creditor to seek interest against the company according to his entitlement, in case of default by the company. 5. With due respect we are unable to concur with the view expressed by the learned Single Judge. We are of the opinion, in the facts of this case, the petitioning-creditor was entitled in law to get payment of interest from the company. It would therefore not be appropriate to direct the petitioner to seek such payment of interest against the company. only in case of default by the company to pay the principal amount of Rs. 7.05.522/- by ten (10) equal instalments as directed by the learned Single Judge. It would therefore not be appropriate to direct the petitioner to seek such payment of interest against the company. only in case of default by the company to pay the principal amount of Rs. 7.05.522/- by ten (10) equal instalments as directed by the learned Single Judge. The interest component, in our view, was inextricably linked with the principal amount which was claimed by the petitioning-creditor and which was not controverted by the company at any stage of the proceeding before the learned Single Judge or even earlier upon receipt of statutory notice. In view of the admitted facts the segregation of the interest component from the principal amount, in our opinion would not appropriate. As such, we allow the application as well as the appeal by modifying a part of the order dated 02nd April, 2009, where by the learned Single Judge had disallowed payment of interest at that stage, while admitting the company petition for winding-up. We direct the respondent company to pay interest @ 9% per annum On the principal amount of Rs. 7,05,522/-. Such sum shall be paid by the respondent-company by ten equal instalments i.e., it shall be added proportionately to the instalments for the principal amount. First of such instalments shall be paid positively by 31st August, 2009 and the subsequent nine instalments to be paid by the end of each succeeding month. The default clause as continued in the order of the learned Single Judge shall however remain unchanged along with all other directions given therein and will also be applicable in respect of payment of interest in terms of this order. 6. There shall be, however no order as to costs. Appeal and application allowed.