- (1.) These two appeals would have identical facts and law involved. Hence, we wish to dispose of the said appeals by a common judgment and order. However, when we would refer to the facts that would relate to Himatsingka Chemicals Private Limited being C.P. No. 694 of 2014.
(2.) The parties to the appeal had commercial relationship for long. The respondent company placed an order for supply of Caustic Soda Flakes, upon the appellant on credit basis. The appellant supplied the goods as per requisition and received payments in part. After giving credit to the sums already received Himatsingka Chemicals Private Limited found a sum of Rs. 10,62,900/- still remaining due and payable as on September 7, 2011. Despite repeated reminders, such sum would remain unpaid. Moreover, respondent would fail to submit sale tax declaration forms amounting to Rs. 51,696/-. Himatsingka Chemicals Private Limited issued a statutory notice of demand intending to apply for winding up of the respondent. The respondent company duly received the said statutory notice of demand dated March 11, 2013 and replied to the same vide letter dated March 25, 2013, inter alia, denying their liability as to the alleged transactions. Himatsingka Chemicals Private Limited filed winding up petition being C.P. No. 338 of 2013. The company contested the said proceeding by filing affidavit. We are told, after a prolonged hearing, the appellant withdrew the said winding up petition with liberty to apply afresh. However, learned Company Judge while granting the prayer for withdrawal, granted liberty "to take steps in accordance with law." Himatsingka Chemicals Private Limited again served a notice of demand on June 16, 2014 followed by a petition for winding up being C.P. No. 694 of 2014. The learned Company Judge dismissed the second application on the ground, it was not maintainable as being hit by res judicata. The relevant extract of the order of the learned Single Judge is quoted below: "Having heard the learned advocates for the parties and upon perusing the instant application, it appears that in the facts and circumstances of the instant case, the petitioning creditor had earlier approached this Court by filing a winding up petition, being C.P. No. 338 of 2013, which was dismissed as withdrawn on 24th April, 2014. While dismissing the application as withdrawn, the Court, however, granted liberty to the petitioning creditor to take steps in accordance with law, if so advised. Now, on the same cause of action, the petitioning creditor has approached this Court once again, citing a second statutory notice. There cannot be any iota of doubt that this application is barred by the principles of res judicata. Even if, the second statutory notice was issued by the petitioning creditor, the cause of action remains unchanged since the latter statutory notice reflects the same claim of the petitioning creditor as stated in its first statutory notice. In such circumstances, the application is liable to be dismissed and is, accordingly, dismissed."
(3.) Being aggrieved Himatsingka Chemicals Private Limited and PH Trading Limited filed the above appeals that we heard on the above mentioned dates. CONTENTIONS:;