up of the appellant company being C.P. No. 172 of 2011. An order was
"C.P. No. 172 of 2011 is admitted. If the deposit of
Rs.7.50 lakh is made within the time indicated, the petition will
remain permanently stayed.
In default of payment of the deposit being made within
the time permitted, the petition will be advertised once in "The
Statesman" and once in "Bartaman". The advertisements should
indicate that the matter will be returnable on the first available
working day after the expiry of four weeks from the date of the
publication. Publication in the official gazette will stand dispensed
with".
The company went up in appeal. The Appeal Court passed on order
dated February 23, 2012 in ACO No. 38 of 2012, APOT No. 95 of 2012, the
operative portion whereof reads as follows:-
"We have gone through the impugned judgment and
order. We do not find any substance in the order as it has been
recorded by the learned Trial Judge that the appellant itself has
offered to secure the entire claim as quantified by the learned Trial
Judge. Therefore, it is difficult for this Court to interfere with the
impugned judgment and order. However, Mr. Sen, learned counsel,
appearing on behalf of the appellant, submits that his client is
prepared to pay a sum of Rs.3 lakhs without prejudice to the
respondent within a fortnight from date. Therefore, in view of the
submission, we direct the appellant to pay a sum of Rs. 3 lakhs to
the respondent who will receive and appropriate the same without
prejudice to its rights and contentions. In the event no payment is
made, this order will stand recalled and the order of admission of
the petition will stand reviewed and advertisement shall be issued
on expiry of period of fortnight in terms of the order of the learned
Trial Judge. The balance amount of Rs.4,22,000/- shall be
secured by a bank guarantee from a nationalized bank of Kolkata
Branch in favour of the Registrar, Original Side of this Court, who
will hold the same till the time as mentioned by the learned Trial
Judge. That payment will be made either by pay order or by bank
draft. Bank guarantee shall be furnished within four weeks from
the date of making aforesaid payment. In case of default of
furnishing bank guarantee, this order will also stand recalled and
the order of winding up will stand admitted and immediately
thereafter advertisement shall be issued in terms of the order of
the learned Trial Judge."
The appeal is still pending.
Learned Advocate for the appellant says that the amount of Rs.3
lakh was duly paid to the respondent herein. The balance amount was
secured by way of a bank guarantee which has been kept renewed till date.
The respondent company has not filed any legal proceeding for
recovery of its balance dues either within six weeks from February 7, 2012,
which was the time period granted by the Learned Single Judge, or at all.
Hence, the bank guarantee that the appellant has furnished by way of
security should stand discharged/released.
Mr. Singh, learned Counsel appearing for the respondent, in his
usual fairness, says that a sum of Rs.3 lakh was indeed received by his
client in terms of the order dated February 23, 2012 passed by a Co-
ordinate Bench. He also says that his client has not filed any legal
proceeding for recovery of the balance dues. Hence, he says that he should
not be opposing the prayer made by the appellant.
We appreciate the fair stand taken by Mr. Singh.
In the facts and circumstances aforestated, there will be an order
in terms of prayer (a) of the Notice of Motion.
The application being ACO/2/2025 stands disposed of.
Since no useful purpose will be served by keeping the appeal
pending, as suggested by learned Counsel for the parties, the appeal being
APO/92/2012 also stands disposed of.
(ARIJIT BANERJEE, J.)
(OM NARAYAN RAI, J.)
R.Bhar
