Bhaskar Bhattacharya, J. - (1.) This Letters Patent appeal is at the instance of an applicant for the Judges' Summons and is directed against order dated February 20, 2007 passed by a learned Single Judge of this Court in C.A. No. 789 of 2005 in connection with C.P. No. 484 of 2004 thereby rejecting the prayer of the appellant.
(2.) The facts giving rise to the filing of this appeal may be epitomised thus: (a) The respondent herein filed an application for winding up of the pet itioner company and ultimately, by an order dated July 7, 2005, P.C. Ghose, J. disposed of the said application with the following order: "Hence, it would be proper at this stage for me to direct the company to pay to the petitioning creditor the said sum of Rs. 10,00,000/- along with interest from the date of granting such loan until the application is being filed before this Court at the rate of 10% per annum and further the interest will be calculated at the rate of 8% per annum from the date of filing of this application till the date of the order and thereafter until the payments are being made by the company to the petitioning creditor, the amount shall carry interest at the rate of 6% per annum. Since the instalments have been prayed before me I direct that the company shall go on making payment at the rate of 2,00,000/- per month along with interest thereon to be calculated as stated hereinabove on the reducing balance month by month to the petitioner creditor. The first of such instalments to be paid on or before 1st August, 2005 and thereafter on the first day of each succeeding month until the full payment is being made by the company to the petitioning-creditor. In default of payment of any one or the last instalment, the petitioning-creditor shall be at liberty to publish advertisement once in The Statesman and once in Anand Bazar. Publication in -he Calcutta Gazette is dispensed with. The matter will be returnable before the Court four weeks after such publication. This application is thus disposed of. All parties are to act on a xerox signed copy of this dictated order on the usual undertaking." (b) Pursuant to the aforesaid order passed by His Lordship, the appellant sent a bank-draft dated July 26, 2005 for Rs. 3,17,118/- and also a schedule of payment of instalments through its learned Advocate's letter dated July 27, 2005 which was duly received by the learned Advocate for the respondent and the respondent duly accepted the payment of the first instalment and the calculation of interest as shown in the schedule and its annexure enclosed therein without raising any objection. (c) Thereafter, the second instalment along with the interest there of was also paid by the appellant to the respondent in the similar way and the same was accepted by the respondent without raising any objection. (d) In similar way, all the five instalments along with interest were ac :epted by the respondent and thus, a total amount of Rs. 15,79,810/- including the interest had been duly paid by the appellant to the respondent within the time fixed by the order dated July 7, 2005 passed by His Lordship. (e) According to the appellant, it is bound under the provisions of the Income- tax Act to deduct the amount of TDS and accordingly, the same was deducted year-wise before the date of the filing of the winding up application and such fact had been admitted by the respondent in the application for winding up and the certificate of TDS issued by the appellant had been annexed to the application for winding up for the purpose of getting benefit of the extension of time under the Limitation Act. (f) By filing the Judges' Summons, the appellant prayed for recording that the appellant had duly complied with the order dated July 7, 2005 passed by His Lordship in C.P. No. 484 of 20)04 by making payment of the amount together with the interest to the respondent and prayed for direction upon the respondent to issue receipts in respect of the instalments in terms of the order passed by the learned Single Judge. (g) The said Judges' Summons was contested by the respondent thereby contending that the appellant was not entitled to adjustment of any amount paid towards TDS prior to the passing of the order dated July 7, 2005 and therefore, the appellant did not comply with the order passed by His Lordship by not paying the amount of Rs. 10 lakh with interest at the specified rate by way of instalments as stipulated Itherein. (h) A learned Single Judge by the order impugned herein has accepted the submission of the respondent that the payment by way of deduction of TDS under the provisions of the Income-tax Act could not be lawfully adjusted against the amount directed to be paid by the order dated July 7, 2005 and accordingly, dismissed the application filed by the appellant thereby holding that the order dated July 7, 2005 was not duly compiled with.
(3.) Being dissatisfied, the appellant has come up with the present Letters Patent appeal.;