ASHIS KUMAR CHAKRABORTY,J. - (1.) The Court : Since both the applications, C.A. No.58 of 2017 and C.A. No.119 of 2017 involve the same set of facts, the same are disposed of by this common order.
(2.) The applicant in C.A. No.58 of 2017, as a petitioning creditor, filed the said application under Section 434(e) of the Companies Act (in short "the Act of 1956") for winding up of the respondent-company on the ground that the latter failed to pay its dues on account of transportation charges. However, the respondent company contested the winding-up application by an order dated March 26, 2015 a learned Single Judge of this Court admitted the winding-up application against the respondent company for the principal amount of Rs.5,15,31,045/- together with interest thereon at the rate of 6% per annum, to be calculated from the date of the statutory notice till the date of actual payment. By the said order the learned Single Judge, however, directed that if the company pays off the entire amount together with interest to the petitioning creditor, within a period of a fortnight from the date the winding-up application would remain permanently stayed and in default the application would be advertised in the newspaper. The company carried out the said order dated March 26, 2015 in appeal, being A.C.O. No.45 of 2015, A.P.O.T. No.38 of 2015. In the said appeal by an order dated April 17, 2015 the Division Bench recorded that the company had admitted its liability to pay Rs.3.50 crores to the petitioning creditor. Based on such admission of the company the Division Bench directed the company being the appellant to pay the said amount of Rs.3.50 crores to the petitioning creditor by way of instalments. The Division Bench directed that subject to the payment of the instalments by the company the order of admission would remain stayed but in default of payment of any of the said instalments the stay would stand vacated and the petitioning creditor would be free to advertise the notice of winding-up proceeding in terms of the directions passed by the learned Single Judge. The Division Bench further held that in case the company makes payment of the instalments, as directed in the said order, the order of stay would continue and the fate of the disputed sum would be decided at the time of hearing of the appeal. However, the company did not make payment of all the instalments in terms of the said order dated April 17, 2015 and ultimately on September 18, 2015 the Division Bench of this Court dismissed the appeal filed by the company. An application filed by the company for review of the Division Bench order dated September 18, 2015, being R.V.W.O. No.28 of 2015 was also rejected but the company did not challenge the said order dated August 4, 2016 before any superior forum. Therefore, the liability of the company to pay the principal sum of Rs.5,15,31,045/- together with interest thereon, as directed by the order dated March 26, 2015 passed by the learned Single Judge while admitting the winding-up application attained finality.
(3.) In spite of dismissal of the aforementioned appeal and its liability to pay the dues of the petitioner in terms of the said order dated March 26, 2015 having attained finality, the company did not make any further payment to the petitioning creditor.;