Asok Kumar Ganguly, J. - (1.) The appellants are contributories and shareholders of the Howrah Motor Company Ltd. (hereinafter referred to as the said company) and the appeal is from an order dated 15th March, 2002 passed by the Company Judge in a winding up proceeding being Company Petition No. 240/98, holding that the settlement between the said company and the petitioning creditor Luxmi Tea Company, has been arrived at in the best interest of the company and no winding up order was made in view of that settlement.
(2.) Material facts of the case are that by two separate cheques the petitioning creditor, the second respondent in this appeal, lent and advanced on diverse dates in January, 1996, Rs. 16 lakh and also Rs. 1 crore to the company and the company was to pay on this intercorporate loan an interest @ 24% per annum and the loan was for a period of 6 months.
(3.) As the company failed to pay the loan, a winding up petition was presented by the 2nd respondent, the petitioning creditor, in the month of August, 1998. On such petition, the winding up Court by an order passed on or about 2nd of September, 1998, admitted the petition and granted certain instalments as the company could not dispute the claim. The learned Company Judge also directed that in default of such payment the petitioning creditor shall be at liberty to publish advertisement. Thereafter, on or about 24th September, 1998 a suit was filed in the Original Side of this Hon'ble Court by some of the shareholders of the said company. The suit was numbered 287/98 (Soumendra Nath Dey & Ors. vs. Howrah Motor Company Ltd.). The suit was between two groups of shareholders of the said company and the plaintiffs were alleging mismanagement of the said company against the defendants arid inter alia, prayed for framing of scheme of management and an administration of the company and also prayed for injunction restraining the defendants, the other group, from dealing with or disposing of assets and properties of the said company. The said suit ;was of representative character and the plaint was signed by Mr. Debraj Dey who is one of the appellants and some of the present appellants are parties to the said suit as heirs of Chandranath Dey. It may be noted that the second respondent, the petitioning creditor, was not a party to the said suit.;