- (1.) Facts of this case, if brought within a short campus, would depict, M/s. Kamalapur Sugar & Industries Limited, a company incorporated under the provisions of Companies Act, 1956 was a debtor in respect of a secured claim of a Nationalised Financial Institution being Dena Bank to the extent of Rs.17.03 crores approximately apart from interest at the rate of 15.5 % per annum at quarterly rest with effect from September 30, 2004. The Bank initially approached the Debt Recovery Tribunal and ultimately obtained a certificate to the above extent. The company preferred an appeal, however did not proceed with the same and the Appellate Tribunal dismissed the same on December 15, 2008 as we notice at page 33 of the paper book. The Company then filed writ petitions before the Madhya Pradesh High Court where the immovable assets were lying, inter alia, praying for an order of restraint against the Bank from enforcing the recovery. The Division Bench of Madhya Pradesh High Court inter alia observed as follows :- "We therefore accordingly provide that the bank draft which is lying with the bank to the tune of Rs.2.75 crores shall be allowed to be encashed by the Company and in case the said money is recovered by the bank adjustment of the aforesaid amount shall be given towards deposit of rupees five crores which is to be made by July 31, 2007".
(2.) An application for review was made that was dismissed vide Order dated August 1, 2007 as we notice at page 37-39 of the paper book. An unsuccessful appeal to the Supreme Court by way of Special Leave Petition also failed when it was "dismissed as withdrawn". From the facts as briefly narrated above, we find that the company availed all available remedies to stall the recovery proceedings however, failed up to the Apex Court level.
(3.) In the above backdrop, the Bank filed a winding up petition as against the company as according to the Bank it was just and equitable that the company should be wound up. Prior to filing of the winding up petition Bank issued a statutory notice of demand dated November 3, 2008 that was replied by the company on December 31, 2008. The Company replied through its advocate denying their liability towards the Bank and termed such notice as an "illegal attempt" to wind up the company. The company also claimed that the very basis of the claim based on the recovery certificate was itself under challenge and was subjudice. Pertinent to note, the appeal of the company before the appellate Tribunal got dismissed on December 15, 2008 fortnight before issuing such reply.;