Smt. Tara Chaudhary Vs. Distinct Realty Ltd. - Court Judgment

Excerpt:
- madhya pradesh municipal corporation act (23 of 1956)section 91 & m.p. municipal corporation act (1956), section 307(5): [a.k. patnaik, c.j., a.m. sapre & s.k.seth, jj] public nuisance - suit for injunction - held, section 91(i) of the c.p.c. is not exhaustive of the remedies that are available to a party even in case of a public nuisance or other wrongful act affecting or likely to affect the public. the remedy of the corporation and any other person under sub-section (5) of section 307 of the act of 1956 is independent of the provisions of section 91 of the c.p.c. and not only the corporation but any other person can apply to the district court for injunction or removal or alteration of a building on the ground that the provisions of the act of 1956 or the bye-laws made.....ordera.m. sapre, j.1. this is a company petition filed under section 433(e) of the companies act against the respondent-company known as distinct realty limited (hereinafter referred to as 'company') seeking for its (company's) winding up. the winding up is sought essentially or rather only on the ground falling under section 433(e) of the act contending that company has failed to pay a sum of rs. 8,42,198 to the petitioner i.e., inability to pay the debt.2. it is the case of petitioners that petitioner no. 1 had applied for allotment of some plot to the company which is claimed to be engaged in the business of sale of plot etc. it is alleged that an agreement to that effect was also entered into. the agreement according to petitioners inter alia provided that it is the option of the.....

Judgment:
ORDER

A.M. Sapre, J.

1. This is a company petition filed under Section 433(e) of the Companies Act against the respondent-company known as Distinct Realty Limited (hereinafter referred to as 'Company') seeking for its (Company's) winding up. The winding up is sought essentially or rather only on the ground falling under Section 433(e) of the Act contending that company has failed to pay a sum of Rs. 8,42,198 to the petitioner i.e., inability to pay the debt.

2. It is the case of petitioners that petitioner No. 1 had applied for allotment of some plot to the company which is claimed to be engaged in the business of Sale of plot etc. It is alleged that an agreement to that effect was also entered into. The agreement according to petitioners inter alia provided that it is the option of the petitioners to opt whether to ask for the plot or return of money with interest at the rate of 16% which the petitioners had claimed to have deposited (Rs. 88,600). It is contended that petitioner instead of opting for having a plot opted for return of the money and for that purpose entered in correspondence/notices with the respondent Company. It is alleged that despite correspondence/notices sent by the petitioner to company to return the money with interest, the company has not yielded to its request and hence, need to file a petition for winding up against the company.

3. Heard Shri G.M. Agrawal, learned counsel for the petitioners on the question of admission.

4. Having heard learned counsel for the petitioner and having perused record of the case, I find no substance in the petition and hence, it must merit in its dismissal.

5. In my considered view filing of a company petition for winding up on the facts alleged and relied upon are not enough and/or proper for entertaining a petition for winding up of any company. It is essentially a case of enforcement of an agreement entered into between the parties. It requires civil adjudication in civil Court namely what are the rights and obligations of the parties vis-a-vis each other, whether they were performed or breached and if so as per the terms of agreement or not. It is then the question can be answered as to whether petitioner is entitled to claim money which they claim to have deposited with the respondent company. As observed supra, this can be decided more properly, effectively and suitably by the civil Court in civil suit but not by the Company Court under the Companies Act in winding up petition. Merely because the debtor happens to a company in itself is no ground to file and entertain a company petition for its winding up though it is one of the main attributes for its entertaining. The Company Court in its special jurisdiction under the Companies Act cannot hold any factual inquiry on questions which are material for deciding the entitlement of petitioner in claiming back the amount. Indeed, the real object and purpose of petitioner is not to see winding up of company but to recover their money.

6. A remedy of winding up of any company under the Companies Act is a discretionary remedy. It is for this Court to decide as to whether a strong prima facie case on facts is made out for admission of winding up petition against any company. Indeed Section 443(2) of the Act empowers this Court to dismiss the petition, if it is of the opinion that some other remedy is available to the petitioner for realisation of their dues or that they are unreasonable in pursuing the remedy of winding up. The reason is that winding up of any company is always regarded as an extreme and/or last remedy. It is a death of any company whose existence comes to an end on passing of a winding up order. The Courts have to be very cautious in their approach while entertaining any winding up petition against any company. No creditor can take advantage of the fact for filing a petition for winding up only because their debtor happens to be a company. Though this is one of the most important factor which enable the creditor to file petition for winding up, but it is equally necessary for the petitioner to make out very strong and prima facie case on facts.

7. The aforesaid discussion is sufficient for dismissal of petition. The petition, thus, fails and is dismissed in limine.