- (1.) This company petition was preferred by the petitioner claiming therein from the respondents an outstanding amount of Rs.1,38,659/- as due for the bills raised relating to transportation of the respondent company's goods. The petitioners have come out that from time to time they have sent various reminders for payment of the dues but the same remained unresponsive and notices were issued by the petitioner for repayment. In the circumstances the petitioners have claimed for the said dues alongwith interest till 30.06.2000 and further interest till actual date of payment as outstanding and payable amount from the respondent company and submit that as the company has stopped performing its functions and is unable to pay debts, it has been prayed to order winding up of the company in terms of Section 433 of the Act. This Court vide order dated 20.07.2000 issued notices to the respondent-company which were duly served as per the report dated 03.11.2001. Power was filed on behalf of the respondents and it was submitted by the respondents by filing a reply to the petition stating therein that the company had been referred on 30.10.1999 to the BIFR under Section 15 (1) of the Sick Industrial Companies (Special Provisions) Act, 1985, (hereinafter referred to as 'SICA'). It was submitted further that SBI was appointed to conduct further audit and the counsel submitted that in view of the law laid down by the Apex Court and in terms of Section 22 of SICA, further proceedings may be stayed. Accordingly, on 22.02.2002 this Court in view of the provisions of Section 22 of the SICA, stayed further proceedings in the matter granting liberty to the parties to file application if the circumstances so arise. On 12.10.2004 counsel for the petitioner filed an application and praying that the application be allowed and the company petition No.30/2000 be listed before the Court for further orders. Another application under Rule 9 of the Company (Court) Rules 1959 was filed praying for taking the amended cause title on record stating that the petitioner which was a partnership firm earlier had been converted to Private Limited Company with the name of MS Road Transport Pvt. Ltd. In the earlier application it was pointed out that the respondent-company's name has now been changed from Modi Alkalies and Chemicals Ltd. to Lord Chloro Alkalies Limited and the said application was allowed on 03.12.2004. However, after 2004 the company petition was not listed in the Court for almost 14 years and there is no noting on the file or giving out any reasons for not listing of the case. Upon the case again being listed in April 2018, the OL was directed to file report relating to the present status of both the companies. Whereafter counsels have put in appearance on behalf of both the parties on 17.05.2018 and they were directed to exchange the pleadings.
(2.) Earlier application moved for changing name of the petitioner partnership firm to a company, was allowed on 26.07.2018 and amended cause title was also taken on record. The respondents had thereafter filed an affidavit of the AGM (Accounts and Finance) working with the respondent-company wherein it has been submitted that the company after having been referred under the SICA to the BIFR, was declared as sick industrial company within the meaning of Section 3(1)(o) of SICA a revival scheme was submitted by IDBI which was appointed as operating agency and the BIFR sanctioned the rehabilitation scheme for revival of the respondent-company in terms of Section 19(3) read with Section 18(4) of the SICA.
(3.) Learned counsel appearing for the respondent submits that in terms of Clause 10.3 of the sanctioned scheme the respondents are ready to pay amount of Rs.13870/- which is the 10% of the total amount as claimed by the petitioner and the company is ready to furnish a demand draft for the said sum alongwith the interest, hence in view of Clause 10.3 of the Sanctioned Scheme, the petitioner ought to withdraw the instant winding up petition. Learned counsel submits that in terms of Section 18(8) of the SICA, the petitioner who is a unsecured creditor was bound by the sanctioned scheme and was therefor required to accept the said amount. On 01.11.2018 counsel for the respondent handed over a draft for the said amount alongwith interest upto the date to the counsel appearing for the petitioner who sought time for taking appropriate instructions. The draft was provisionally accepted by the counsel, however on 06.12.2018 it was informed that the petitioners have refused to accept the amount as calculated by the respondents on the ground that the sanctioned scheme was operating for 7 years but the respondent did not comply with the scheme during the period when it was in operation and now the petitioners cannot be bound by it as time has expired. The petitioner submitted further that as they were not party to the original scheme, they were only bound upto the limitation period of 7 years which had gone by long back. Learned counsel for the petitioners submits that the scheme was not acted upon and it was the duty of the respondent to have brought the scheme on record immediately after the same was approved by the BIFR and offered the amount to the petitioner at the relevant time however after the lapse of 7 years as provided under the scheme, the petitioner was not bound and the said amount was handed over to the respondents' counsel.;