- (1.) The appeals would relate to claim in a winding up proceeding made by Corporation Bank for Rs.10.8 crores for Sahyogi Distributorship Ltd. and Rs.8 crores against Vikas Metal and Power Ltd. amounting to Rs.18.8 crores. The learned Single Judge admitted the winding up petitions and directed advertisement to be published.
(2.) Being aggrieved, both the companies being Vikas and Sahyogi filed two separate appeals. The appellants failed to obtain any order of stay, resulting advertisement published in the newspaper. It is yet to be disposed of finally. The appeals were heard by us on the abovementioned dates. If we bring the facts in a short campus, it would be as follows: Facts would depict, the parties entered into a financial arrangement by which the appellants being constituent of the respondent Bank used to enjoy credit facilities against the cheques being deposited in the Bank without waiting for their clearance. As per the arrangement the moment cheques were deposited, Bank would be allowing them to enjoy the amount covered by the cheques and would credit the account by adjustment as soon as the Bank would realize the amount from the drawee. According to the agreement, in case of dishonour of any cheque, the amount would be deposited by the constituent immediately on the next day. The subject matter involved herein would show, both the companies under the same management deposited several cheques worth Rs.8 crores in Vikash Metal and Power Limited and Rs.10.8 crores in Sahyogi Distributors Limited.
(3.) Needless to say, all the cheques were dishonoured. By the time the cheques were placed and got dishonoured the constituent availed the amount covered by the said cheques. In this backdrop, the Bank issued a demand notice under Section 434 of the Companies Act, 1956 upon both the companies followed by winding-up proceeding that were admitted by the learned single Judge. Hence, these appeals by the appellant. Mr. Kalyan Bandopadhyay, learned senior counsel appearing for the appellants attacked the judgment and order impugned raising the following issues : (i) The agreement appearing at page-88 did not mention anywhere that the outstanding sum would have to be cleared immediately on the asking of the Bank. (ii) The sanction letter appearing at page-89 would provide for interest at the base rate plus 4.25% per annum that would clearly show, the Bank would be entitled to interest on expiry of one year period. Hence, the money would not become immediately payable. (iii) The company already offered collateral security to secure the claim. Hence, the Bank should fall back upon the security instead of pressing the claim through winding up petition. (iv) To make a winding up petition admissible, the creditor must have a quantified realizable debt against the company. Such prerequisite was absent in the present case.;