- (1.) The matter comes up on remand by the Division Bench of this court in D.B. Civil Special Appeal (Company Petition) No.64/2000 decided on 19-12-2005. The Division Bench set aside the winding up order dated 28-7-2000 qua the respondent company on the ground that an application for revival of the company under Section 391 of the Companies Act, 1956 (hereinafter 'the 1956 Act') pending at the relevant time before the Company Court had not been considered. The Company Court was required to consider the issue of winding up afresh in the context of the application under Section 391 of the 1956 Act propagating revival of the respondent company.
(2.) Heard counsel and perused the winding up petition.
(3.) The respondent company XLO United Clutch Products Limited (XLO) is alleged to be indebted to the petitioner Motor Industries Company having its registered office at Hosur Road Adugodi, Bangalore. It is alleged that the respondent company had not paid its debt due to the petitioner company and in fact not paid the amount due without good cause in spite of repeated demands. A notice in the circumstances was sent by the petitioner company on 12-11-1994 under Section 434 of the 1956 Act claiming discharge by the respondent company of its outstanding debt of Rs.25,59,854/-. On the failure of respondent company to repay the said outstanding amount, a company petition under Section 433 (e) of the 1956 Act was filed on the allegation that the respondent company was unable to pay its debt. The respondent company entered appearance and raised preliminary objections with regard to the maintainability of winding up petition on the ground that Board for Industrial and Financial reconstruction (BIFR) under the Sick Industrial Companies (Special Provisions) Act, 1985 (hereinafter 'the 1985 Act') had sanctioned a rehabilitation scheme for its revival, and therefore, the winding up proceedings could not be proceeded with in view of Section 22 of the 1985 Act. In the circumstances obtaining, the winding up petition was kept in abeyance.;