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COMP/225/2007 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
COMPANY
PETITION No. 225 of 2007
====================================
RAJIV
B SHAH - Petitioner
Versus
DINESH
PHARMACEUTICALS PRIVATE LIMITED - Respondent
====================================
Appearance
:
MR HM PARIKH for Petitioner.
MR
DC DAVE for Respondent.
====================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
Date
: 01/12/2008
ORAL ORDER
The
petitioner, namely, M/s. Shree Craft, through its Proprietor Shri
Rajiv B. Shah has filed this petition under Section 433 read with
Section 434 of the Companies Act, 1956 for winding up of the
respondent Company on the ground that the respondent Company has
failed to discharge its liabilities to the tune of Rs.1,53,57,002/-
to the petitioner.
This
Court has issued notice on 19.12.2007. Pursuant to the notice, the
respondent Company filed its appearance through learned advocate Mr.
D. C. Dave and detailed affidavit is filed disputing its liabilities
towards the petitioner. The petitioner has also filed
affidavit-in-rejoinder.
On
06.10.2008, Mr. D. C. Dave, learned advocate appearing for the
respondent Company has made the statement before the Court that the
respondent Company is going to file a suit against the petitioner as
well as sister concern. Accordingly, the matter was adjourned.
Today,
Mr. H.M. Parikh, learned advocate appearing for the petitioner has
placed on record a copy of Special Summary Suit No.534 of 2008 filed
by the respondent Company in the Court of learned Civil Judge
(S.D.), Baroda against the petitioner as well as sister concern
claiming an amount of Rs.1,99,28,841/-.
Having
heard learned advocates appearing for the respective parties and
having gone through the petition, affidavit-in-reply filed by the
respondent Company, affidavit-in-rejoinder filed by the petitioner
and the documents attached before the Court as well as the plaint of
the Special Summary Suit No.534 of 2008 filed by the respondent
Company against the petitioner as well as the sister concern, the
Court is of the view that several disputes are involved in the
present petition. As against the claim of the petitioner, the
respondent Company has also made a counter claim by way of filing a
summary suit before the Civil Court. Thus, the issues raised
between the parties in the present petition cannot be properly
adjudicated in absence of oral as well as documentary evidence and
it requires full-fledged trial. A competent Civil Court can
certainly go into the rival claims of the parties and after proper
adjudication, the competent Civil Court can arrive at the just and
proper conclusion in the matter. Even otherwise, it is settled
legal position that when a Company against whom winding up petition
is filed, has approached to the Civil Court and filed a suit, making
claim against the petitioner, the Company Court normally does not
proceed with the winding up petition and directs the parties to
prove their claim before the competent Civil Court. The Court is,
therefore, of the view that it is not just and proper for this Court
to entertain this petition and, therefore, directs the petitioner to
approach the Civil Court, if he so desires, either by way of filing
a counter claim in the pending suit filed by the respondent Company
or by filing a separate suit making claim which has been made by the
petitioner in the present petition. It is made clear that the Court
has not gone into the merits of the matter and has dismissed the
present petition only on the short ground that the respondent
Company has also filed a civil suit against the petitioner. Hence,
dismissal of the present petition would not come in the way of the
petitioner to make his claim before the Civil Court against the
respondent Company and it is sure that when such a claim is made by
the petitioner before the competent Civil Court either in the
pending suit or by way of separate suit, the same shall be
adjudicated upon and appropriate decision would be taken by the
Court in such proceedings.
Subject
to the aforesaid direction and observation, this petition is
accordingly disposed of. Notice discharged without any order as to
costs.
Sd/-
[K. A. PUJ, J.]
Savariya
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