Judgment :- Ashim Kumar Banerjee, J. 1. Facts of this case, if brought within a short campus, would depict, M/s. Kamalapur Sugar & Industries Limited, a company incorporated under the provisions of Companies Act, 1956 was a debtor in respect of a secured claim of a Nationalised Financial Institution being Dena Bank to the extent of Rs.17.03 crores approximately apart from interest at the rate of 15.5 % per annum at quarterly rest with effect from September 30, 2004. The Bank initially approached the Debt Recovery Tribunal and ultimately obtained a certificate to the above extent. The company preferred an appeal, however did not proceed with the same and the Appellate Tribunal dismissed the same on December 15, 2008 as we notice at page 33 of the paper book. The Company then filed writ petitions before the Madhya Pradesh High Court where the immovable assets were lying, inter alia, praying for an order of restraint against the Bank from enforcing the recovery. The Division Bench of Madhya Pradesh High Court inter alia observed as follows :- “We therefore accordingly provide that the bank draft which is lying with the bank to the tune of Rs.2.75 crores shall be allowed to be encashed by the Company and in case the said money is recovered bythe bank adjustment of the aforesaid amount shall be given towards deposit of rupees five crores which is to be made by July 31, 2007”. 2. An application for review was made that was dismissed vide Order dated August 1, 2007 as we notice at page 37-39 of the paper book. An unsuccessful appeal to the Supreme Court by way of Special Leave Petition also failed when it was “dismissed as withdrawn”. 3. From the facts as briefly narrated above, we find that the company availed all available remedies to stall the recovery proceedings however, failed up to the Apex Court level. 4. In the above backdrop, the Bank filed a winding up petition as against the company as according to the Bank it was just and equitable that the company should be wound up. Prior to filing of the winding up petition Bank issued a statutory notice of demand dated November 3, 2008 that was replied by the company on December 31, 2008. Prior to filing of the winding up petition Bank issued a statutory notice of demand dated November 3, 2008 that was replied by the company on December 31, 2008. The Company replied through its advocate denying their liability towards the Bank and termed such notice as an “illegal attempt” to wind up the company. The company also claimed that the very basis of the claim based on the recovery certificate was itself under challenge and was subjudice. Pertinent to note, the appeal of the company before the appellate Tribunal got dismissed on December 15, 2008 fortnight before issuing such reply. 5. The company contested the said winding up petition. The company took the plea that the winding up petition was not maintainable as there was no debt due as on that date. The learned Judge rejected the contentions and admitted the winding up petition vide judgment and order dated December 23, 2009 appearing at pages 60-64 of the paper book. 6. Being aggrieved, the appellant preferred an appeal. The Division Bench dismissed the appeal vide judgment and order dated February 23, 2010 by observing it as infructuous in view of the fact that the winding up notice had already been published in newspaper after admission and the winding up petition took a representative character by that time. Their Lordships however, granted liberty to the company to raise all available pleas at the time of final hearing. The matter came up for final hearing before the learned Company Judge. The company reiterated the pleas which they had taken at the time of admission, including the one that the winding up petition was a premature one in absence of a quantified undisputed debt being a pre-requisite of maintaining a winding up proceeding. In effect, the Company challenged the winding up proceeding at its threshold on the ground of maintainability. Upon hearing rival contentions the learned Judge allowed the winding up proceeding and passed an order of winding up as against the Company vide judgment and order dated July 30, 2010 appearing at pages 159-170 of the paper book. His Lordship held the winding up petition maintainable on the ground that there was just claim which could be enforced giving rise to a winding up proceeding in terms of Section 434(1)(a) and (b) of the said Act of 1956. Hence, this appeal by the Company. 7. We heard Mr. His Lordship held the winding up petition maintainable on the ground that there was just claim which could be enforced giving rise to a winding up proceeding in terms of Section 434(1)(a) and (b) of the said Act of 1956. Hence, this appeal by the Company. 7. We heard Mr. Abhrajit Mitra, learned counsel appearing for the appellant as well as Mr. P.C. Sen, learned senior counsel appearing for the respondent/creditor. 8. Mr. Mitra advanced his argument by taking recourse to Order 34 Rule 4, 5 and 6 of the Code of Civil Procedure as well as Appendix D, Form 11 thereat. Mr. Mitra tried to contend that the proceeding before the Tribunal was in the nature of a mortgage suit. The recovery certificate so issued by the Tribunal would thus empower the Bank to enforce their claim and recover their dues through the process of sale of the mortgage property. In case there was any shortfall the Bank would have to go back to the Tribunal to have a money decree for the balance that would obligate the guarantors to satisfy. According to Mr. Mitra, the recovery certificate was nothing but a preliminary decree that could not be said to be a certificate for a quantified debt and/or a decree within the meaning of Section 434(1)(a) or 434(1)(b) of the said Act of 1956. Elaborating his argument Mr. Mitra contended that a winding up petition could only be maintainable at the instance of a creditor once he had a quantified admitted debt that could not be bona fide disputed by the company. According to him, the present proceeding was a premature one in absence of the Bank having the mortgage property sold in terms of the recovery certificate for satisfying their debt. 9. On the issue of determination of debt Mr. Mitra contended that the debt could only be determined, once the fixed assets so mortgaged with the Bank were sold and sale proceeds were adjusted against the claim of the Bank. Unless such process was exhausted there could not be any quantified monetary claim the Bank would be having to set forth as against the company claiming its winding up. 10. As and by way of alternative submission, Mr. Mitra contended that a mortgage creditor must exhaust its remedy available in law to realize its dues through sale of the mortgage assets. 10. As and by way of alternative submission, Mr. Mitra contended that a mortgage creditor must exhaust its remedy available in law to realize its dues through sale of the mortgage assets. Unless such remedy was exhausted it could not be said that they had a quantified debt that could be set up as a just debt within the meaning of Section 433/434 of the said Act of 1956. He lastly contended, in case the Bank based its claim on the original transaction irrespective of the certificate it would be barred by the laws of limitation being beyond three years as was held by the learned single Judge of this Court in the case of Rameswar Prosad Kejriwal & Sons Ltd. –VS-M/s. Garodia Hardware Stores reported in 2002 Volume-II Calcutta Law Times Page-59. 11. Mr. Mitra relied on the following decisions : i) Mt. Jeuna Bahu & Others –VS-Parmeshwar Narayan Mahta & Ors. (All India Reporter 1918 Privy Council Page-159) ii) Mt. Sukra –VS-Ram Harakh & Anr. (All India Reporter 1951 Allahabad Page-195) iii) Badat & Company, Bombay –VS-East India Trading Company (All India Reporter 1964 Supreme Court Page-538) iv) Ram Ranjan Chakravarti –VS-Indra Narain Dass (1996 Indian Law Reporter Volume-33 Calcutta Page-890) v) State Level Committee & Another –VS-Morgardshammar India Ltd. (1996 Volume-I Supreme Court Cases Page-108) vi) Som Dev & Ors. –VS-Rati Ram & Anr. (All India Reporter 2006 Supreme Court Page-3297) 12. Per contra, Mr. P.C. Sen, learned senior counsel appearing for the Bank contended that a recovery certificate issued by the Debt Recovery Tribunal was a result of a special proceeding under a special statute and could not be equated with a decree of a Civil Court passed under Order 34 of the Code of Civil Procedure. Mr. Sen contended that even assuming the notice could be termed as ‘bad’, the company was otherwise insolvent and it was just and equitable that it should be wound up. 13. Referring to the factual matrix Mr. Sen contended that the company took all possible steps to forestall the recovery. He referred to the orders of the Madhya Pradesh High Court as well as the Apex Court to show that the writ petitioner praying for cancelling the recovery of possession, but dismissed and such orders reached its finality when the Special Leave Petition was dismissed as withdrawn. Sen contended that the company took all possible steps to forestall the recovery. He referred to the orders of the Madhya Pradesh High Court as well as the Apex Court to show that the writ petitioner praying for cancelling the recovery of possession, but dismissed and such orders reached its finality when the Special Leave Petition was dismissed as withdrawn. He referred to the judgment and orders of the Tribunal issuing recovery certificate to show that ample opportunities were given to the company to pay off the dues in instalments. The company miserably failed to avail such opportunity. Mr. Sen also referred to the order dated March 2, 2012 of the learned Company Judge wherein we find that an attempt to revive the company proposing a scheme of arrangement also failed when the same was not pressed by the propounders of the said scheme. He referred to the reply to the statutory notice to show that only sustainable plea that the company could take, was to the extent that the issue was sub-judice. The said reply was issued on December 31, 2008 whereas the appeal to the Appellate Tribunal got dismissed on December 15, 2008. He also referred to the order admitting the winding up proceedings. The appeal from the said order also got dismissed as referred to above. 14. On the legal issue as raised by Mr. Mitra, Mr. Sen distinguished the precedents cited at the Bar. According to him, learned Single Judge in Rameswar Prasad (supra) did not notice the earlier precedents, in any event that too, also would not in any way assist the company in forestalling the winding up process. It would rather support the same. He referred to the age old decision in the case of Harinagar Sugar Mills Co. Ltd., Bombay Vs. M.W. Pradhan reported in AIR 1966 SC 1707 to say that winding up proceeding, although not a debt collecting process, could be said to be an equitable mode of execution. In support of his contention he referred to another decision in the case of Maxlux Glass Pvt. Ltd. Vs. ICICI Ltd. Company reported in 2001 Calcutta Law Times page-539. 15. Mr. Sen lastly cited a passage from the decision in the case of Imperial Hytropathic Hotel Co. reported in 49 L.T. page 147 to quote George Jessel M.R. on the doctrine of bonafide dispute. ICICI Ltd. Company reported in 2001 Calcutta Law Times page-539. 15. Mr. Sen lastly cited a passage from the decision in the case of Imperial Hytropathic Hotel Co. reported in 49 L.T. page 147 to quote George Jessel M.R. on the doctrine of bonafide dispute. The passage being apt, is quoted below : “The rule, is no doubt, that when the debt is undisputed and is of sufficient amount then he has a right to obtain payment by winding up petition, if he has given a statutory notice. Then we have to consider what is the meaning of a debt being undisputed. As I said in this case, there was no reasonable excuse for refusal to pay this debt or neglecting to pay it, but was there under a mistake in law, a bonafide dispute, something which should have prevented him from presenting the winding up petition? I do not think there was. I have looked through the correspondence and I must say, I have come to the conclusion that writers of the letters on the part of those who disputed the claim of Mr. Batty had no clear idea of their position. They stated in one letter one thing, and in another letter, but none of the letters appeared to me to amount to this : We dispute your debt on any one of these grounds. They said in one letter, “you did not lend it to our clients”. In another letter, “we have received no notice of your claim and cannot admit any claim against these persons without evidence in support of it.” Then they asked for particulars, but when we come to the facts, we find this, that the creditor knew that they had a balance sheet with his name in it and with the amount in; that they had paid him interest in April, receiving this demand in May for the 500 pounds sterling from the very people and of course, he would naturally think they were trifling with him, and they knew the particulars. Besides that, he tells them this, and I think he might reasonably believe that they were playing with him. Besides that, he tells them this, and I think he might reasonably believe that they were playing with him. That is the view I take of the correspondence and I am by no means unprepared to say this, that if they had put all those shadowy claims together in a letter in the most distinct terms, the creditor would still have been entitled to think that they were, to use a common phrase, making game of him – that they could not be serious in such line of defence. Then, he is entitled to say “my claim is not bonafide disputed. You are amusing yourselves by weaving some cobwebs; but you do not intend to pay, and you know that this is nonsense and that it is a mere excuse for non-payment, or for obtaining delay………” 16. While replying to what was argued by Mr. Sen, Mr. Mitra distinguished the decision in the case of Maxlux Glass Pvt. Ltd. (supra) wherein he contended that paragraph 21 of the said decision would rather support him. He reiterated that the winding up proceeding was a premature one as the Bank did not avail the remedy available to them, through the process of sale as contained in Order 34. He referred to the doctrine of merger to say that the petition based upon a certificate issued by the Tribunal could not be enforced through a winding up process without exhausting the remedy available to them under Order 34. Mr. Mitra informed this Court that the Bank simultaneously proceeded before the Tribunal and obtained orders for attachment as would appear at page 246 of the Paper Book. He prayed for setting aside of the order of winding up passed by the learned Single Judge. 17 efore we proceed to deal with the subject controversy let us first understand the law on the subject in context of the precedents cited at the Bar noted above. 18. In the case of Harinagar Sugar Mills Co. Ltd. (supra), the Apex Court observed, to maintain a winding up petition under Section 439 of the said Act of 1956 a creditor has to satisfy that the debtor company failed and neglected despite demand being raised in accordance with the provisions of Section 434. The Apex Court relied on a passage from Palmer’s Company precedents, “a winding up petition is a perfectly proper remedy for enforcing payment of debt. The Apex Court relied on a passage from Palmer’s Company precedents, “a winding up petition is a perfectly proper remedy for enforcing payment of debt. It is the mode of execution which Court gives to a creditor against a company unable to pay its debts”. 19. In the case of Unique Cardboard Box Manufacturing Ltd. (Supra), the learned single Judge of this Court considered an identical issue wherein a winding up petition was sought to be maintained on a claim made as per an ex parte decree passed by a civil Court. The learned Judge observed, Sub-section 1(a) would make it clear that if a notice was served by the company regarding payment of any debt due to the creditor and such debt was not satisfied within the stipulated period the company would be deemed to be unable to pay its debt. His Lordship further held that Sub-section 1(b) was disjunctive and alternative ground for deemed insolvency. 20. In the case of Rameswar Prasad (supra), another learned single Judge of our Court considered a winding up petition based on a decree passed beyond three years considering the date of the decree and the date of presentation of the petition. His Lordship dismissed the winding up petition. While doing so, His Lordship observed, “this court goes by the same principle and holds that the period of limitation should be counted from 1992. But assuming it is not counted from 1992, it has to be counted from 1997. Therefore, considering the matter from all possible angles, this court is of the view that instant winding up petition has become barred on the date on which it is presented. It cannot be held that in the case of winding up petition, limitation period will be 12 years which may be the case in matters of execution of a decree.” 21. Mr. P.C. Sen, the learned senior counsel appearing for the respondent was critical about the above judgment to say that His Lordship did not properly advert to the earlier decision in the case of Unique Cardboard Box Manufacturing Ltd. (supra). We note that the said decision (Unique Cardboard) was not placed before His Lordship. 22. In another decision our Division Bench presided by the then Chief Justice in Maxlux Glass Pvt. Ltd. (supra) considered a quantified debt followed by a recovery certificate issued by the Debt Recovery Tribunal. We note that the said decision (Unique Cardboard) was not placed before His Lordship. 22. In another decision our Division Bench presided by the then Chief Justice in Maxlux Glass Pvt. Ltd. (supra) considered a quantified debt followed by a recovery certificate issued by the Debt Recovery Tribunal. The Division Bench rejected the contention of the company that it was in effect a prayer for discharge of debt. The Division Bench held, the company’s insolvency would attract the order of admission. Paragraph 31 being relevant herein is quoted below :- “A perusal of the aforesaid prayer clearly shows that there is no prayer for payment of debts. Learned counsel for appellant though argued that there is no prayer for debt but in substance it is for discharge of debt. We are unable to accede to the submission of the learnedcounsel for the respondent that such petitions are not basically fordischarge of debts, debt is only one element but there is also public purpose behind it that such defunct companies should not be allowed to survive in the commercial world to the detriment of public.” 23. Mr. Mitra however placed strong reliance on the Rameswar Prosad (supra). As observed earlier, the said decision would be of no assistance to him, as on factual matrix the learned Judge found the claim being barred by limitation having raised beyond three years. 24. On the issue of exhaustion of remedy Mr. Mitra relied on two decisions in the case of Mt. Jeuna Bahu & Others (supra), and Ramranjan Chakraborty (Supra). The above two decisions were cited to support his contention that the winding up petition could not be held to be maintainable unless the remedy was exhausted as provided under Order 34. We find that such issue was answered by our Division Bench in the case of Maxlux Glass Pvt. Ltd. (supra). Our Division Bench considering the earlier Apex Court decision on the issue rejected such contention raised by and on behalf of the Company. 25. On the doctrine of merger Mr. Mitra relied on a passage from Halsbury’s Laws of England. The passage would denote “the defence of “judgment recovered”, arising as it does out of res judicata, has much in common with estoppel by record, although it is not founded upon it. 25. On the doctrine of merger Mr. Mitra relied on a passage from Halsbury’s Laws of England. The passage would denote “the defence of “judgment recovered”, arising as it does out of res judicata, has much in common with estoppel by record, although it is not founded upon it. A claimant who has once sued a defendant to judgment cannot, while the judgment stands, though unsatisfied, sue him again for the same cause, not because he is estopped from doing so (although he, as well as the defendant, is estopped from averring anything contrary to the record), but because the cause of action is merged in the judgment, which creates an obligation of a higher nature. It is also probably true to say that a person who has once recovered judgment for a sum of money is estopped from averring that he ought to recover any further sum for the same cause of action.” He also relied upon two Apex Court decisions in the case of Som Dev & Ors. –VS-Rati Ram & Anr. (Supra) and Badat & Company (supra) on the issue. 26. On a combined reading of the ratio decided in the precedents referred to above, we would find the argument so advanced by Mr. Mitra was misplaced. The winding up was a statutory remedy giving wide discretion to the learned Judge. Such discretion was to be exercised on the well settled principle of law as to putting up a claim against a company that the company failed and neglected to meet without any reasonable cause. In short, a claim against a company that could not be resisted by the Company through a bona fide approach having plausible reasons to defend the same would automatically attract the fiction of deemed insolvency that would maintain a winding up proceeding against the debtor company through a creditor. If we read Sub-section 1(a) and 1(b) together and on a combined reading we would find that the concept of debt would also include a debt quantified by an adjudicating agency. The Debt Recovery Tribunal quantified the debt and adjudicated the same and issued a recovery certificate. All attempts of the Company to resist such claim on meritfailed. Hence, the claim of the creditor reached finality that could be said as a just debt payable by the Company that would maintain the winding up proceeding. 27. The Debt Recovery Tribunal quantified the debt and adjudicated the same and issued a recovery certificate. All attempts of the Company to resist such claim on meritfailed. Hence, the claim of the creditor reached finality that could be said as a just debt payable by the Company that would maintain the winding up proceeding. 27. The matter may be viewed from another angle. The defence so raised by the Company now was put forward before the learned Judge whenwinding up petition was being admitted. His Lordship rejected identical pleas. The Company preferred an appeal however, the same became infractuous as by the time the appeal came up for hearing the winding up proceeding took a representative character. We are not unmindful to notice that the Division Bench permitted the Company to raise all admissible pleas however, such liberty given by the Division Bench, in our considered view, cannot override the sound principle of law that order of admission upon a contested hearing would amount to finality on the claim of the petitioning creditor, binding the Company. The Company would no more be entitled to raise the identical plea at the stage of final hearing of the winding up petition when the Company would face a representative action that became an action in rem. The learned Judge hinted on such proposition and, in our view, very rightly. 28. If we consider the factual matrix we would find, the Company availed all legal opportunities that they were entitled to in law, to resist the claim. They failed at all stages as noted above. The amount became due and payable by the Company that the Company neglected to pay. The learned Judge considered such issue and rightly passed an order of winding up as the Company as on that date was insolvent being unable to pay its debts. Its existence would cause threat to the commercial world. 29. We do not find any scope of interference to what was observed and held by His Lordship. 30. The Appeal fails and is dismissed. There would be no order as to costs.