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Judgment
S. Jagadeesan, J.—The appellant has filed this appeal against the order of the learned Judge dated 24.8.1999 in C.P. No. 27/1995.
The appellant claimed a sum of Rs. 35 lakhs from the respondent Company on the ground that the appellant paid the amount towards the
purchase of shares. If the shares were sold to the petitioner, the said amount will not bare any interest. If no shares were sold to the appellant, then
the amount shall bear interest at 24%. Since the respondent Company neither allotted the shares to the appellant nor refunded the amount received
towards the value of the shares, the appellant has filed the said Company Petition for winding up of the respondent Company. Admittedly, during
the pendency of the Company Petition, the appellant received a sum of Rs. 35 lakhs. However, the Company Petition was argued on merits with
regard to the entitlement of interest. The learned Judge held that the claim of the appellant for interest is a debatable question and as such the
winding up petition cannot be ordered. Consequently, the petition was dismissed. Against the same, the present appeal has been filed.
The learned counsel for the appellant contended that since the amount of Rs. 35 lakhs was paid to the respondent company for the allotment of
shares and further, as it was agreed that in case, if the shares were allotted to the appellant, the amount will not bear any interest, the failure on the
part of the respondent Company in allotting the shares would entitle the appellant to claim interest. On that basis, the learned counsel for the
appellant contended that the finding of the learned Judge is not correct.
We carefully considered the above contention of the learned counsel for the appellant. When the respondent had disputed the claim of interest
and since the appellant also received a sum of Rs. 35 lakhs, without any demur in respect of interest, the learned Judge took the view that the
interest as claimed by the appellant is a debatable one, which cannot be decided in this proceeding.
We also agree with the view taken by the learned Judge for the simple reason that while receiving the sum of Rs. 35 lakhs, especially pending
the Company Petition, it is for the appellant to raise objections with regard to interest. Without any specific protest, the appellant had received the
sum of Rs. 35 lakhs and the respondent is now disputing the entitlement of the appellant for the interest. When that be so, the intention of the
parties have to be considered only by taking evidence and not by mere interpretation of the receipt signed by the parties.
Hence, we do not find any infirmity in the judgment of the learned Judge in finding that the claim of the appellant for the interest is a debatable
one on the basis of the bona fide dispute raised by the respondent company, which cannot be gone into in this proceeding. Hence, we do not find
any reason to differ from the view taken by the learned Judge. Hence, this O.S.A. No. 174/2001 is dismissed. No costs.