Biswanath Somadder, J. - (1.) Let the affidavit of service filed in Court today be kept on record.
(2.) This winding up application has been taken out by a finance company against a borrower, being a company registered under the Companies Act in the State of West Bengal. From the averments made in the winding up application and the submissions advanced by the parties it appears that the company entered into several loan-cum-hypothecation agreements with the petitioning creditor for purchase of several earth moving equipments (Mercedes Benz Actros 4841K). Admittedly, the company defaulted in making payments. This gave rise to proceedings under the Arbitration and Conciliation Act, 1996, since each of the agreements contained an arbitration clause. The petitioning creditor instituted section 9 applications before the Bombay High Court and several orders were passed by the learned Single Judge as well as by the Division Bench of that Court. In respect of the same transaction, the finance company has now filed the instant winding up application on the basis of a statutory notice dated 24th September, 2015, wherein the petitioning creditor's total claim appears to be a sum of Rs.2,95,29,966.96p (Rupees two crores ninety five lakhs twenty nine thousand nine hundred sixty six and paise ninety six). The statutory notice dated 24th September, 2015 was replied to by the advocate of the borrower company in terms of a letter dated 12th October, 2015. In the said letter it has been stated, inter alia, that the subject loan agreements are currently sub-judiced before the Bombay High Court and as such no liquidated amount stands due as on date from his client, namely, the borrower company.
(3.) At the time of hearing of the matter, the learned advocate representing the finance company, being the petitioning creditor, submits that notwithstanding the fact of existence of the proceedings before the Bombay High Court under the Arbitration and Conciliation Act, the instant winding up proceeding, being essentially a discretionary proceeding, is maintainable before this Court. In this context, he refers to a judgment rendered by a Division Bench of this Court in the case of Maheshwari Ispat Ltd. v. Tata Capital Financial Services Ltd. reported in [2013] 179 Company Cases 15 (Cal).;