A winding up application is a special right under The Companies Act and cannot be filed before the Tribunal formed under The Recovery of Debts Due To Banks And Financial Institutions Act, 1993.

BABOO LALL JAIN, J.

( 1 ) AN order was made on 27- 11 1989 by Justice U. C. Banerjee allowing instalments to the Company and further giving liberty to the petitioner to apply in case of default.

( 2 ) BY another order dated 10-9-1990 passed by Justice Prabir Kumar Majumdar instalment were again allowed to the Company for payment of the dues of the petitioning creditor. By the said order dated 10-9-1990 it was, inter alia, provided that in default of making payment in the manner as indicated in the said order, the petitioner will be at liberty to apply for further directions.

( 3 ) IT has been submitted on behalf of the petitioner that there has been defaults in payment of the instalments as directed by the aforesaid order though some payments were made. It has also been submitted on behalf of the petitioner that in view of the defaults, the petitioner has become entitled to seek further directions in the matter.

( 4 ) THE learned Advocate appearing on behalf of the Company has not disputed the defaults nor has he filed any affidavit on behalf of his client disputing any default. It has been submitted what by virtue of The Recovery of Debts Due To Banks And Financial Institutions Act, 1993, this winding up application be not continued in this Court. The learned Advocate for the Company has also placed before me Sections 17 and 18 of the said Act of 1993.

( 5 ) IN my opinion it cannot be said that a winding up application is an application for obtaining decision for recovery of debts due to any bank or financial institution. A winding up proceeding is a proceeding under The Companies Act and the relief and/or order for winding up can only be made by or under the provisions of the Companies Act.

( 6 ) IN my opinion an application for winding up is a special right or remedy given under the Companies Act and the Court while hearing a winding up application decides only whether the Company is liable to be wound up or not and does not decide the question as to recovery of debts due to any bank or financial institution. The winding up court is only concerned to decide whether the Company comes within the ambit of the provisions as mentioned in Section 433 of The Companies Act, 1956 which reads as follows:"section 433: Circumstances in which company may be wound up by Court- a Company may be wound up by the Court- (a) if the Company has, by special resolution resolved that the Company may be wound up by the Court: (b) if default is made in delivering the statutory report to the Registrar or in holding the statutory meeting; (c) if the Company does not commence its business within a year from its incorporation or suspends its business for a whole year; (d) if the number of members is reduced, in the case of a Public Company, below seven and in the case of a private Company, below two: (e) if the Company is unable to pay its debts; (f) if the court is of opinion that it is just and equitable that the Company should be wound up;"

( 7 ) IN a creditor's application the Court is concerned to decide whether the Company is unable to pay its debts and comes within the ambit of the other sections, viz. Section 434 and 439 of The Companies Act. Section 434 provides as to when the Company is deemed unable to pay its debts. Section 439 makes provisions as to application for winding up. Such petitions for winding up can be made by the Company, by any Creditor or Creditors, by any contributory or contributories, by the Registrar or by the parties as provided under Section 439 of The Companies Act.

( 8 ) IN my opinion a winding up proceeding cannot be filed before the Tribunal formed under the aforesaid Act of 1993, and the Tribunal does not have jurisdiction to entertain any application for winding up of a company, whether it is made by any bank or financial institution or any other parties.

( 9 ) IN view of the what is stated above, the application for winding up is admitted. The petitioner will issue advertisements once in The Telegraph and

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