- (1.)This is a petition filed under sections 433 and 434 of the Companies Act seeking an order of winding up against the respondent company. According to the petitioner, an amount of Rs.49,82,371.43 was due from the respondent on account of the advertisements the respondent published in newspapers through the petitioner and an amount of Rs.17,65,807.04 on account of interest. I have heard the learned counsel for both the sides. It is the defence of the respondent that wherever advertisements were published by the petitioner after getting release order signed by the Director of the respondent company, the respondent has made the payment and only an amount of Rs.1,00,000/- remains to be paid on that count. According to the respondent, the bulk of the claim of the petitioner relates to the advertisements which were published by the petitioner without the publication of the advertisement being approved by an authorised persons on behalf of the respondent. I have gone through the record produced by the respective parties. It appears that the release orders of disputed advertisements are signed by one Akhil Chandra who admittedly was General Manager of the respondent company. The petitioner has produced certain papers before me to show that even in case of these advertisements, the approval was required by the Director of the respondent company. However, there appears to be dispute between the parties whether the signature of the Director on which the petitioner is relying relates to the said bills. It is further to be seen that the petitioner had also submitted bills which were accepted by the respondent and the objection in respect of those bills if any was to be raised within 15 days. It is an admitted position before me that no such objection was raised The learned counsel appearing for the respondent, however, submitted that it is only the Director of the respondent who was authorised to release approval for advertisements and General Manager had no such authority. The learned counsel also submitted that during the year 1995-96 the respondent has paid to the petitioner an amount of Rs.2,00,00,000/- . After having heard the learned counsel for both the sides and after having gone through the record, in my opinion, following order would meet the ends of justice :
(2.)The respondent is directed to deposit in this Court an amount of Rs.20,00,000/- and furnish bank guarantee of a scheduled bank to the satisfaction of the Prothonotary and Senior Master in the amount of Rs.25,00,000/- within a period of three months from today with due intimation to the petitioner. The petitioner may file a civil suit for recovery of its claim within a period of four weeks from the date of deposit and furnishing of the bank guarantee. If the deposit is not made and the bank guarantee is not furnished as directed above on the same day, then the period of four weeks would reckoned on which the later event occur. In case the bank guarantee is furnished and the amount is so deposited, this petition shall stand disposed of. The petitioner be permitted to withdraw an amount of Rs.1,37,380/- from out of the amount of Rs.20,00,000/- deposited by the respondent. The balance amount and the bank guarantee shall be governed by the order that may be passed in the civil suit to be filed by the petitioner. In case the amount is not so deposited and the bank guarantee is not given within the aforesaid period, this petition shall stand admitted. In case the petitioner fails to file the civil suit within the aforesaid period, then the entire deposit be refunded to the respondent and the bank guarantee shall stand cancelled. It is clarified that the petitioner be permitted to withdraw the amount only after producing the proof that he has filed civil suit. It is directed that till the amount is deposited and the bank guarantee is furnished, the respondent shall not dispose off, alienate, encumber its assets in any manner except as may be required for day-to-day business. In view of the order passed on company petition, company application does not survive for consideration, however, in case the petition stands admitted. The petitioner is entitled to file fresh application for similar reliefs.
Certified copy expedited.