PARIHAR, J. - (1.) FOR agreements came to be executed on the same date i. e. 30. 3. 1995. The first agreement was in regard to sale deed, by which, the petitioner company M/s. Lok Housing & Constructions Ltd. agreed to purchase certain equipments described in the invoices enclosed with the agreement from the Rajasthan State Electricity Board-a statutory Corporation-for a consideration of Rs. 8,15,40,000/ -. The second agreement was for hire purchase between M/s. ITC Bhadrachalam Finance & Investments Ltd. and the petitioner company M/s Lok Housing & Constructions Ltd. , for the equipments as described in the schedule to the agreement. Another agreement for lease of equipment was made on the same day i. e. 30. 3. 1995 between the petitioner company Lok Housing & Constructions Ltd. , the lessor, and the Rajasthan State Electricity Board, the lessee, to lease out the specified equipments described in schedule to the agreement. In the above agreement for lease of equipments between the petitioner company and the Rajasthan State Electricity Board, it had clearly been mentioned that the lessor has acquired equipments specified on hire purchase basis under an agreement dated 30. 3. 1995 and further the lessor, with the consent of ITC Bhadrachalam Finance & Investments Ltd. , the owner, has offered to give on lease and the lessee has agreed to take on lease, the specified equipments on the terms and conditions set out in the agreement.
(2.) A tripartite agreement was also executed on the same day between ITC Bhadrachalam Finance & Investments Ltd. (the owner), M/s. Lok Housing & Constructions Ltd. (the hirer), and the Rajasthan State Electricity Board (the lessee), by which, the lessee agreed to pay first 60 lease rental monthly instalments upto 25. 2. 2000 to ITC Bhadrachalam Finance & Investments Ltd. The Rajasthan State Electricity Board, now reconstituted as the Rajasthan Rajya Vidyut Utpadan Nigam, the respondent company regularly made the payments of the instalments as agreed by the tripartite agreement, referred to above, to ITC Bhadrachalam Finance & Investments Ltd. , upto 25. 2. 2000. It seems that some disputes between the parties mainly the petitioner company and ITC Bhadrachalam Finance & Investments Ltd. arose thereafter. The petitioner company claimed monthly rental instalments due from 25. 3. 2000 as per the lease agreement dated 30. 3. 1995 from the respondent company. In spite of notices given to the respondent company from time to time, since the payments of rental instalments were not made by the respondent company, the petitioner company has filed the present company petition under Sec. 433 (E) and (F) read with Sec. 434 of the Companies Act, 1956 with the following prayers: " (i) It may order for winding up of the respondent company since the respondent company is unable to pay their debts/liability to the petitioner company and have neglected to pay a sum of Rs. 1,49,80,000/- which became due as per the duly executed agreement by the respondent company. (ii) That till passing of final order, the respondent company may be restrained from making payment of the due amount to any party other than the petitioner and be further directed to pay the admitted payable amount to the petitioner company. (iii) The Official Liquidator attached to this Hon'ble Court may be appointed as provisional Liquidator of the company so that he can control and supervise the affairs of the respondent company. (iv) That till passing of the final order by this Hon'ble Court, it is respectfully prayed that the respondent company may be restrained from placing/alienating/transferring/mortgaging/appropriating or selling any of its properties movable or immovable to any other person. " After issuing notices, a detailed reply has been filed on behalf of the respondent company. The execution of agreements, as referred to above, have not been disputed so far. However, it has been submitted that in view of disputes between the petitioner company and ITC Bhadrachalam Finance & Investments Ltd. , now known as BFIL Finance Ltd. (in Short `bfil'), a civil suit been filed by the above company BFIL in the High Court of Bombay, in regard to the same equipments, the payment of rental instalments can be made only as per the directions of the Bombay High Court in the civil suit pending therein. It has further been submitted in the reply that in the civil suit pending in the Bombay High Court not only the petitioner company has been arrayed as the defendant but the respondent company has also been impleaded as defendant. A copy of civil suit filed by BFIL formerly known as ITC Bhadrachalam Finance & Investments Ltd. in the Bombay High Court has also been annexed with the reply filed on behalf of the respondent company. Copies of some correspondence between the petitioner company, the respondent company and M/s. ITC Bhadrachalam Finance & Investments Ltd. have also been submitted alongwith the reply. Mr. U. N. Bhandari, learned Senior Advocate, appearing on behalf of the petitioner-company, submitted that as per the lease agreement dated 30. 3. 1995 the respondent was required to make the payment of lease rental monthly instalment to the petitioner- company from 25. 3. 2000. Inspite of repeated reminders and notices, since the respondent-company has failed to make the payment of total sum of Rs. 1,49,80,000/- calculated upto 10. 4. 2001, the petitioner has a right to invoke the jurisdiction of this court for winding up of the respondent-company. He has further submitted that in absence of any interim order passed by the Bombay High Court, wherein, the civil suit is alleged to be pending, the respondent-company is bound by lease agreement. Mr. Bhandari has relied upon a judgment of the learned Single Judge of the Calcutta High Court in the case of Aviquipo of India Ltd. vs. Pressman Ltd. (1 ).
(3.) MR. Virendra Lodha on the other hand while referring to the detailed reply, filed on behalf of the respondent-company, submitted that in view of disputed questions of fact and law and also pendency of a civil suit before the Bombay High Court, wherein, the agreement for hire purchase dated 30. 3. 1995 between the petitioner-company and M/s. ITC Bhadrachalam Finance & Investments Ltd. , now known as BFIL itself is under challenge, this court should not interfere in the present company petition at this stage. MR. Lodha has further submitted that the present petition is also liable to be dismissed on the ground of not impleading ITC Bhadrachalam Finance & Investments Ltd. , now known as BFIL, as party to the petition since the lease agreement is only an off shoot of the hire purchase agreement between the petitioner and ITC Bhadrachalam Finance & Investments Ltd. , with another tripartite agreement of the same date between the petitioner-company, respondent company and the above ITC Bhadrachalam Finance & Investments Ltd. After having considered submissions made at Bar by the learned counsel for the parties, I have carefully gone through the entire material on record and also the judgments cited at the Bar. It is not disputed that equipment involved in all the agreements, referred above, is the same. Four agreements were executed on the same date in regard to sale, hire purchase, lease and tripartite agreement between three parties for making lease rental instalments upto a certain period to ITC Bhadrachalam Finance & Investments Ltd. by the respondent- company. As has come on record, M/s. ITC Bhadrachalam Finance & Investments Ltd. has already given notices for terminating the hire purchase agreement dated 30. 3. 1995 as per relevant clauses of the above agreement. It is also not disputed that in the civil suit, filed by BFIL, formerly known as ITC Bhadrachalam Finance & Investments Ltd. , in the High Court of Judicature for Bombay, the petitioner-company M/s. Lok housing a Construction Ltd. has been impleaded as first respondent and Rajasthan State Electricity Board, now reconstituted as Rajasthan Rajya Vidyut Utpadan Nigam Ltd. respondent-company in the present petition, as second respondent. It will be just and proper to refer to the prayers made in the civil suit, referred above, which are reproduced here as under:- " (a) That it be declared that the plaintiff is the owner of the said equipments being Instrumentation and Monitoring Systems, KTPS-II and Recuperators and Air Pre-Heaters, KTPS-II Unit 3 more particularly described in Exhibit "b-1" hereto; (b) That it be declared that hire-purchase agreement dated 30. 03. 1995, between the plaintiff and the 1st Defendant has been validly terminated by the plaintiff; (c) That the 1st Defendant be ordered and decreed to pay to the plaintiff a sum of Rs, 2,46,85,428. 00 as per the particulars of the claim being Exhibit "gg" hereto together with interest at the rate of 36% per annum on Rs. 1,42,22,872. 00 from the date of the filing of the suit till payment and/or realisation; (d) That the 2nd Defendant be ordered and decreed to pay the plaintiff a monthly sum of Rs. 11,08,944/- up to 25. 02. 2001, and Rs. 8969/- thereafter up to 25. 02. 2005; (e) That the 1st and 3rd Defendants be ordered and decreed to do all necessary acts, deeds, and things including but not restricted to the execution of an agreement for sale and a power of attorney in favour of the plaintiff in order to bring to sale the shops more particularly described in Exhibit "hh" hereto and this Hon'ble Court be pleased to direct the sale of the said shops and credit the sale proceeds towards the decretal amount payable by the 1st Defendant to the plaintiff. (f) That the 1st and the 2nd Defendants be ordered and decreed to hand over possession of the said equipments more particularly described in Exhibit "b-1" hereto to the plaintiff; (g) That pending the hereing and final disposal of the suit, the Court Receiver, High Court, Bombay, or any other fit and proper person be appointed as Receiver of the said equipments more particularly described in Exhibit "b-1" hereto and the shop premises more particularly described in Exhibit "hh" hereto, with all powers under Order 40, Rule 1 of the Code of Civil Procedure, 1908, including the power of sale; (h) That pending the hearing and final disposal of the suit, the Defendants, by themselves, their officers, servants and agents be restrained by an order and injunction of this Hon'ble Court from in any manner directly or indirectly dealing with and/or disposing of and/or parting with possession and/or creating any third party rights in the said equipments, more particularly described in Exhibit "b-1" hereto and/or the shop premises more particularly described in Exhibit "hh" hereto; (i) That pending the hereing and final disposal of the suit, the 2nd Defendant be directed to tender monthly payment to the plaintiff in the sum of Rs. 11,08,944/- up to 25. 02. 2001, and Rs. 8969/- thereafter up to 25. 02. 2005; (j) In the alternative to prayer (i) herein above, the 2nd Defendant be restrained from paying any sum whatsoever to the Defendant No. 1 under the Lease Agreement dated 30. 03. 1995, or otherwise in respect of the said equipments, the 2nd Defendant be directed to deposit in this Hon'ble Court, each month Rs. 11,08,944/- up to 25. 02. 2001, and Rs. 8,969/- thereafter up to 25. 02. 2005. (k) For ad-interim relief in terms of prayer clauses (g), (h), (i) and (j) herein above; (l) For costs of the suit; (m) For such further and other relief as the nature and circumstances of the case may require. " ;