Salil K.Roy Chowdhury, J. - (1.) This is a winding up petition which was presented on 25th September. 1981, On the returnable date notice was directed to be served on the company along with copy of the petition. The company appeared and took direction for filing affidavit to show cause why the winding up petition should not be admitted. The petitioning creditor also filed a reply to the said affidavit. The petitioning creditor is a Deity Sri Sri Biswamata Debi which presented this petition through her Sebait and next friend Salil Kr. Mitra, trustee of the said deity.
(2.) The claim arises out of a fixed deposit of Rs. 45,000/- made on or about 1st Oct. 1953 evidenced by 45 fixed de-posit receipts of Rs. 1,000/- each issued by the company bearing serial numbers 21 to 50. The terms and conditions of the fixed deposit are printed at the back of the said fixed deposit receipts. The fixed deposit was for a period of 21 years from 1st Oct. 1953 and would carry interest at the rate of 5% per annum under the terms and conditions of the said fixed deposit. It appears that the company failed to pay the interest at the agreed rate for certain period which resulted in a notice under Section 434 of the Companies Act issued on behalf of the petitioner dated 17th July, 1969 and finally a winding up petition being C. P. No. 258 of 1969 was filed in this court on the 16th Jan. 1970. The said company petition was disposed of after the company filed an affidavit and the terms of settlement were put in by which the company petition was admitted and the respondent company was directed to pay the arrears of interest accrued on the said fixed deposit before the filing of the terms and other conditions as laid down in the said order passed by R.M. Datta, J. One of the terms of the said order is as follows: "Without prejudice to the rights and contentions of the parties the respondent shall be at liberty to file a suit if deemed necessary to establish its contentions within 15 days from the date of the order to be made herein. In the event of the filing of the said suit within the period as aforesaid, the respondent undertakes to Court to pay unconditionally to the petitioner the annual interest on the said fixed deposit within a month from the accrual thereof and to continue such payment until the suit is finally disposed of. In the event of the non-filing of the suit within the period as aforesaid, the respondent will be deemed to have admitted the contention of the petitioner in this application and the respondent will be entitled to raise the same dispute specifically." The said order makes it quite clear that unless the said suit is filed within the time stipulated by the said order dated 16th Jan. 1970 the question of disputing the said fixed deposits on any ground whatsoever will be lost and the company will be deemed to have accepted the said fixed deposit receipts as valid and binding on the company. It is now an admitted fact that the company has not filed any such suit pursuant to the order of the court and, therefore, it necessarily follows as consequence that the company has admitted the fixed deposits as valid and binding and that order was made as far back as on 16th Jan. 1970.
(3.) The company must be deemed to have been estopped by procedure to raise any question regarding the validity of the said fixed deposits and the company is bound by the principle of res judicata as the same is by an order of the court. It also appears that the company having failed to pay the interest as per the said order made in C. P. No, 258 of 1969 a contempt petition was filed and a rule was Issued by R.M. Datta. J.;