Aloke Chakrabarti, J. - (1.) In the winding up petition filed by the petitioner in C. P. No. 248 of 1996 against Shaw Wallace and Co. Ltd. (hereinafter referred to as "the company") for a sum of Rs. 5,09,93,927 inclusive of interest, by order dated September 30, 1996, it was recorded that the company "admits the liability for Rs. 4 crores being the principal amount due and payable and also agrees to pay interest at the rate of 20 per cent. from August 2, 1995, till the date of the winding up petition". The final direction was as follows : "In that view of the matter, considering the facts and circumstances of this case, I direct that interest should be paid at the rate of 22 per cent. until the date of filing of the winding up petition on the admitted principal amount of Rs. 4 crores and thereafter at the rate of 12 per cent. The company is allowed to pay the principal amount along with interest which has accrued due by six monthly installments, the first of such installments to be paid on November 4, 1996, and all subsequent installments will be paid on the 15th of each and every succeeding month. In the event of default the petitioner will be at liberty to mention and obtain directions from the court for advertisement."
(2.) On an appeal, the Division Bench considered the facts involved in the case including the fact that a sum of Rs. 3 crores had already been paid and there was still due and payable a sum to the extent of Rs. 2.31 crores having due regard to the interest rate as directed by the learned trial judge. The relevant portion of the order of the appeal court is as follows : "Having considered the matter in its entirety and having due regard to the concept of justice and fairness, we deem it expedient to dispose of this stay application and the appeal, upon treating the same as on the day's list by consent of the parties, in the manner following : The company is directed to pay a sum of Rs. 2,60,00,000 (rupees two crores sixty lakhs) in total including all interest to the appellant by installments. The first of such installments shall be for a sum of Rs. 60 lakhs to be paid within a period of four weeks from the date hereof. All the subsequent installments shall be for a sum of Rs. 50 lakhs each to be paid on or before the last day of each succeeding month. Be it recorded that the learned trial judge has been pleased to direct that in the event of default of payment, the matter should be brought to the notice of the court. We, however, do not feel it expedient to keep such a direction and the same is set aside. We direct that in the event of default of payment of any one of the installments within the due dates as specified above, the company petition being No. 248 of 1996 shall stand admitted and advertisements be issued once in two local dailies being the Statesman and Aajkall and publication in the Calcutta Gazette stands dispensed with."
(3.) By an order dated January 10, 2001, though certain directions were passed regarding payment to creditors but for those creditors not receiving payment in terms thereof, were kept outside its scope. The present applicant did not receive payment in terms of the said order and thus remaining outside the same, made this application relying on the earlier order of the appellate court.;