Whether Reporters of Local Papers may be allowed to see the judgment ?
NO 2 To be referred to the Reporter or not ?
NO 3 Whether their Lordships wish to see the fair copy of the judgment ?
NO 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
NO 5 Whether it is to be circulated to the civil judge?
NO ========================================================= KOTHARI & SHAH QUARRY WORKS - Petitioner(s) Versus B.D.PATEL QUARRY WORKS PRIVATE LTD. - Respondent(s) ========================================================= Appearance :
MR NILESH A PANDYA for Petitioner(s) : 1, MR BHARAT JANI for Respondent(s) :
1, ========================================================= CORAM :
HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 30/04/2012 CAV JUDGMENT (1) This Company Petition has been filed by the petitioner - Kothari & Shah Quarry Works for an appropriate order of winding up of the respondent Company - B.D. Patel Quarry Works Pvt. Ltd. under the provisions of the Companies Act, 1956 (hereinafter referred to as "the Act") more particularly, under Sections 433 and 434 of the Act alleging that the respondent Company is indebted to the petitioner Company to the tune of Rs.11,68,512.18 along with the interest at the rate of 15% per annum and inspite of repeated requests, demands and statutory notice served upon the Company, the respondent Company has neglected to pay the said amount and therefore, it is requested to pass appropriate order of winding up.
(2) It is the case of the petitioner that as the lands in possession of the respondent Company were not utilised and even the plant and machinery installed upon it was not put to optimum use, by an oral contract dated 1.5.1996, it has handed over possession of such lands for the use of the same as quarry. It is the case of the petitioner Company that the said oral agreement culminated into written agreement dated 16.7.1999 which embodies in its various conditions. It is the case of the petitioner Company that the petitioner Company gave deposit of Rs.10,00,000/- from the other firms of the petitioner Company to the respondent Company on 21.3.1996 on the condition that such deposit would be paid back as and when demanded by the petitioner Company. It is also the case of the petitioner that as per the agreement between both the Companies, it was also agreed to supply goods to the sister concern firms of the respondent Company and that it was responsibility of the respondent Company to pay the said amount or to adjust the same with the rent payable by the petitioner Company. It is the case of the petitioner Company that on expiry of the period of contract, the land of the respondent Company was handed over back to the respondent Company and on reconciliation of the accounts, it reveals that a sum of Rs.11,68,512.18 was payable by the respondent Company. It is further the case of the petitioner Company that on 18.12.2001, the respondent Company had tendered a cheque amounting to Rs.7,27,000/- drawn in favour of the petitioner Company from the accounts of the respondent Company in Punjab National Bank. However, the said cheque was also dishonoured. It is the case of the petitioner that the respondent Company, even on repeated requests for payment having been made by the petitioner Company, did not give any heed to the same. It is the case of the petitioner that as no payment was made by the respondent Company, the petitioner Company issued a statutory notice dated 24.2.2005 calling upon the petitioner to pay the amount of Rs.11,68,512.18 with 15% interest per annum within a period of 21 days from the date of receipt of the said notice. It is the case of the petitioner that the statutory notice has been duly served upon the respondent Company. Still however, as the requests made in the said statutory notice were not complied with by the respondent Company, the present petition is filed.
(3) At the outset, it may be noted that this Court (Coram: R.S. Garg, J. as he then was) while admitting the matter by order dated 1.5.2006 had passed the following order :-
"Mr.Nilesh A. Pandya, learned Counsel for the petitioners, submits that the direct service affidavit dated 28th April, 2006 has already been filed in this Court.
As none appears for the respondents, the petition is admitted for hearing. Let the hearing be advertised in "Indian Express" (English) and "Divya Bhaskar" (Gujarati), both Baroda Edition. The date of hearing be shown as 26th June, 2006. Publication of the advertisement in the Official Gazette is dispensed with."
(4) The record further reveals that on account of misstatement made in the petition, this Court (Coram: M.R. Shah, J.) by an order dated 1.2.2007 passed the following order:-
"Appropos the order passed by this Court dated 25th January, 2007, Shri Nilesh Pandya, learned advocate appearing for the petitioner has submitted that the petitioner company has already deposited an amount of Rs.15,000/- by Demand Draft on yesterday. Under the circumstances, Registry is directed to transmit an amount of Rs.10,000/- to the Gujarat High Court Legal Aid Committee and Rs.5000/- to the Gujarat High Court Advocates' Library.
Office is directed to notify this matter for final hearing as this Company Petition is already admitted. S.O. to 6th February, 2007."
(5) Mr.
Pandya, learned advocate for the petitioner Company has submitted that the financial position of the respondent Company is not sound. Mr. Pandya submitted that the accounts of the petitioner clearly reveals the fact that the said amount is due and payable by the respondent Company. It is submitted that even in the reply to the statutory notice, it has clearly denied the facts and has raised only technical objections. Mr. Pandya relying upon the accounts of the respondent Company produced by way of an affidavit filed by the respondent Company submitted that the said accounts clearly indicates that the amount of Rs.10,00,000/- is shown in the balance sheet as Kothari deposits from Crown Engineering and National Builders. It is further submitted that from the accounts of the respondent Company, it is clearly mentioned that an amount of Rs.7,00,000/- as Kothari Spare Bills-Old, wherein separately the amount due and payable to Kothari Constructions Pvt. Ltd., Crown Engineering and Nilkanth Engineering are reflected. It is further submitted that the contention taken by the respondent in reply to the notice that, in fact the amount is due and payable by the respondent Company is without any basis. It is further submitted that the contention raised that the statutory notice was not served at the registered office of the Company is also false. It is therefore submitted that the respondent Company is unable to pay dues and the financial position is not sound and therefore, the petition deserves to be allowed.
(6) Per contra, Mr. Bharat Jani, learned advocate for the respondent Company has opposed the petition. Mr. Jani submitted that the very basis of the petition is on a wrong premise that no reply was given even though demand was raised and it has not been paid, is not true. It is submitted that as far as the demand raised by the petitioner is concerned, the same is without any basis and has no specific adjudication to the said aspect. Mr. Jani further relying upon the accounts submitted that the reliance placed for by the petitioner even upon the accounts of the respondent Company is incorrect, inasmuch as, that the deposits which are in the name of other Companies which are different entities is made the basis of this petition. It is further submitted that in fact the petitioner has tried to enforce a time barred debt by way of this petition. It is further submitted that in fact the petitioner Company did not pay the dues of the Government and the respondent Company had incurred huge expenses for repairs and maintenance of plant and machinery and other articles. It is further submitted that the respondent Company is a running concern and has stated in the affidavit before this Court that the money transaction is running into more than Rs.50,00,000/-. Mr. Jani relying upon the averments made in Para 21 of the affidavit in reply filed in this petition submitted that these facts have not been denied by the petitioner Company. It is further submitted that the agreement is dated 16.7.1999. The accounts which are relied upon by the petitioner is of the year 2001-02 and the statutory notice came to be given on 24.2.2005 and hence, the petitioner Company has made an attempt to press for recovery of a time barred debt. Mr. Jani, further relying upon the reply given in Paras 18 and 19 of the statutory notice, pointed out that on the contrary, a huge amount is due and payable by the petitioner Company.
(7) Mr.
Jani has relied upon the following judgments:-
(i) Tata Iron and Steel Co. Vs. Micro Forge (India) Ltd., reported in (2001) 104 Company Cases 533.
(ii) Vijayalakshmi Art Productions Vs. Vijaya Productions Pvt. Ltd., reported in (1997) 88 Company Cases 353.
(iii) The Jay Bharat Credit Ltd. Vs. Jalgaon Re-Rolling Industries Limited, reported in (1998) 1 Company Law Journal 120 (Bom).
(8) Mr.
Jani relying upon the aforesaid judgments pointed out that when the debt is not a bonafide debt but a disputed debt, the Company Court stays its hands and it would be for the parties to get the dispute adjudicated in a competent Civil Court and it cannot be said that the Company has neglected to pay on statutory demand. Mr. Jani relying upon the case of Vijayalakshmi Art Productions (supra) as well as Jay Bharat Credit Ltd. (supra) submitted that the debt is a time barred debt and hence, the same cannot be pressed by way of a petition of winding up. Hence, the debt claimed must be recoverable and not barred by the limitation on the date of the petition.
(9) Relying upon the aforesaid judgments and making the above submissions, Mr. Jani has requested to dismiss the present Company Petition.
(10) It appears from the copy of the agreement dated 16.7.1999 that the said agreement is between the petitioner and the respondent Company. On perusal of the accounts relied upon by the petitioner, the entries in the accounts i.e. the balance sheet of the petitioner for the financial year 2001-02 bears the name of the respondent Company, whereas on perusal of the accounts submitted by the respondent Company which is in fact relied upon by the learned advocate for the petitioner also mentions Crown Engineering and National Builders titled under Kothari Deposits and Kothari Spare Bills-Old. It is evident from the said accounts that it is deposited by Crown Engineering and National Builders which are different entities. In addition to that, from the documents on record, it appears that the amount claimed by the petitioner is a disputed debt.
(11) The Division Bench of this Court in the case of Tata Iron and Steel Co. (supra) has observed as under:-
"Bonafide dispute over debt is a question depending upon the factual scenario of a given case. Where there is a bonafide dispute, the company cannot be said to have neglected to pay on a statutory demand. In Palmer's Company Law, 24th Edition, at page 1366, it has been clearly observed that a petition for winding up with a view to enforcing payment of a disputed debt is an abuse of process of the Court and should be dismissed with costs. This principle is, succinctly, established in following English Cases.
1. Imperial Silver Quarries (1868) 14 W.R. 1220;
2. Kings Cros Industrial Dwellings Co. (1870) L.R. 11 Eq. 149;
3. London & Paris Banking Corp. (1875) L.R. 19 Eq. 44, 446;
4. Cadiz Waterworks Co. v. Barnett, (1875) L.R. 19 Eq. 182;
5. Cercle Restaurant Castiglione Co. v. Lavery (1881) 18 Ch. D. 555;
6. Imperial Hydropathic Hotel Co. (1882) 49 L.T. 147;
7. K.L. Tractors Ltd. In re (1954) V.L.R. 505;
8. Bryanston Finance Ltd. v. De Vries (No.2) (1976) Ch. 63 (C.A.)
9. Re Claybridge Shipping Co. S.A. the Times, March 14, 1981 (C.A.); (1981) C.A.T. 143.
To fall within the general principle, the controversy, really, must be bonafide in both, subjective and objective sense. This means that, it must be, honestly, believed to exist and must be based on substantial or reasonable grounds. 'Substantial' means having substance and not frivolous or vexatious and which the Court should ignore. There must be so much doubt and question about the liability to pay the debt that the Court sees that there is a question to be decided. It must also be remembered that the onus is on the company to bring forward a prima facie case, which satisfies the court that there is something which ought to be tried either before the Court, itself or in an action or by some other proceedings.
There are various factors and facets, contours and chronicles emerging from the facts of the case requiring consideration before adjudicating upon the plea of winding up by the Court. When the petitioner is forcing payment of debt, which it knows to be in substantial dispute the evidence may support an action by the company against the petitioner for the tort of malicious prosecution. No monetary loss or special damage to the company need be proved for the presentation of the petition is, from its very nature, calculated to injure the credit of the company. It will be interesting to refer to a decision in A - Company (No.003729 of 1982), (1984) 1 W.L.R. 1090, that even in a case where the company in good faith and on substantial grounds disputed the debt and could not know the sum due but was willing to pay a lesser amount, its omission to pay either the statutory demand or the lesser amount did not constitute 'neglect' within the meaning of section 123(1)(1) of the Insolvency Act, 1986, which is applicable in case of an issue of winding up of a company in England and Wales.
In a recent decision in "Re-Bayoil SA Seawind Tankers Corp. v. Bayoil SA, reported in (1999) 1 All ER page 374, the proposition of law is, again, very well expounded and propounded in case of compulsory winding up. It was decided on 31st July, 1998. It has been held in the said case that when a Company had a genuine and serious cross-claim which it had been unable to litigate, the Court should, in the absence of special circumstances, dismiss or stay the winding up petition in exercise of its discretion under section 125(1) of the Insolvency Act, 1986. In that case, the cross-claim was genuine and serious, it was one which the company was unable to litigate and it exceeded the amount of the petitioner's debt. The fact that no appeal lay in relation to the interim award that the company's P & I club had granted security for the company's claim and that there was no real evidence that the award could be paid did not amount to special circumstances which made it inappropriate for the petitioner to be dismissed or stayed. The appeal was, accordingly, allowed and winding-up order came to be discharged. Similarly, for dismissal of winding up petition where the company has a genuine defence or dispute or a cross-claim, it has been observed in Halsbury's Laws (4th edn) (1996 reissue) para 2212. 4 Halsbury's Statutes (4th edn) (1998 reprint) 821 succinctly propounds the winding up issue in similar cases when discretion is sought to be exercised under section 125 of the Insolvency Act, 1986.
The pith and substance of the observations made in the Halsbury's Laws, in this connection, could be highlighted in following terms:
A petition founded on a debt which is disputed in good faith and on substantial grounds is demurrable for the reason that the petitioner is not a creditor of the company within the meaning of section 224(1) at all and the question whether he is or is not a creditor of the company is not appropriate for adjudication in winding up proceedings. In fact, in such a situation, the dismissal of the petition is not at any rate, initially, a matter of discretion of the court. It is founded on the petitioner's inability to establish the locus standi to present a petition under what is now section 124(1) of the Insolvency Act, 1986. The case of an undisputed debt with a genuine and serious cross-claim is different, in that the dismissal or staying of the petition can only be a matter for the discretion of the court, albeit that its exercise may have been narrowed by authority. So, there may be two categories of cases, one disputed debt category and another cross-claim case category.
In the present case, there is a bonafide dispute of debt and also substantial dispute of counter claim. The principles, which we have enunciated hereinabove, are extensively, explored in catena of judicial pronouncements. For short, we cannot resist the temptation of referring the following decided cases:
(1) Madhusudan Gordhandas & Co. v. Madhu Woolen Industries Pvt. Ltd, (1972) 42 Company Cases, 125 (SC), wherein, it is held that one act of dishonesty on the part of the petitioner is sufficient for rejection of petition.
(2) Harinagar Sugar Mills v. Court Receiver, H.C.Bombay, AIR 1966 SC 1707, wherein it has been observed, relying on Palmer's Company Precedents that a winding up order is not a normal alternative.
(3) Pradeshiya Industrial & Investment Corporation v. North India Petrochemicals Ltd., (1994) 3 SCC 348, wherein it is held that mere inability to pay debt without any other evidence itself is not always sufficient to exercise discretion in favour of the petitioner.
(4) American Express Bank Ltd. v. Core Health Care Ltd., (1999) 96 Company Cases, 841, wherein, this Court (Coram: R.Balia, J.) has, lucidly, propounded the material principles and important parameters to be considered by the Court before adjudicating and exercising discretionary powers under section 433 of the Companies Act, 1956.
(5) Ashok Fashions v. Magdoot Acid & Chemicals, (Guj) (1998) 91 Company Cases, 655. Dealing with the procedural part, also, as required under the Company Court Rules, 1959, pertaining to winding up has laid down certain principles. What is the requirement for being stated in the petition under rule 95 in case of Creditors petition prescribed requirements under forms No.45, 46 and 47 are dealt with. It is held that if the petition does not disclose the financial status of the respondent Company, which is mandatory in case of a petition by the creditor, and therefore, petition came to be dismissed on that ground."
(12) Similarly, in the case of Vijayalakshmi Art Productions (supra), the Madras High Court has observed thus:-
"The right given to a creditor under section 433(e) of the Companies Act to seek winding up of the company is to enable such creditor to realise the amounts due to the creditor along with all other creditors of the company. Such action by a creditor is for the benefit of all the creditors. After the petitioner ceased to be a creditor by reason of the amount lawfully due to the petitioner having been paid, the petitioner has no further right in relation to the affairs of the company, and no enquiry need be made into the company's finances or its conduct in other matters for the purpose of deciding as to whether the winding up order is warranted. A winding up order cannot be made at the instance of the person who himself is not a creditor at the time the winding up order is to be made, by reason of the acknowledged debt having been paid to such a creditor. The scheme of the Companies Act is to provide for continued operation of the company except in the circumstances indicated in the Act. The company is not to be wound up unless it is essential to do so.
Learned counsel for the petitioner then contended that as the petitioner has also invoked section 433(f) and having regard to the financial position of the company it is just and equitable to wind up the company.
After the petitioner had ceased to be a creditor, the winding up petition at the instance of such person either on the ground of inability to pay its debts, or on the ground that it is just and equitable to wind up, will not lie. Moreover, a petition on just and equitable grounds will not be entertained when an adequate alternative remedy is available to the petitioner. If the petitioner has a legally enforceable claim against the respondent, it is open to the petitioner to resort to remedies in civil courts which he is entitled to do. The petitioner cannot, merely by asserting that it has a claim even though the claim is barred by limitation, further assert that it is just and equitable to wind up the company. A case for winding up on the grounds that it is just and equitable to do so has also not been made out in the petition. In any event, the petitioner cannot be heard at this stage to contend that the company should be wound up on that ground.
Learned counsel for the respondent submitted that the petitioner has failed to furnish any of its documents such as its accounts and ledger books, etc., even though the respondent had called upon the petitioner to do so. Such failure to produce its books considered along with the alleged accounting of the loans in benami and fictitious names, and the admitted inaction in enforcing its claim for any part of the alleged advances or interest thereon during the period of 9 years between 1985 and 1994, would indicate, as rightly contended by the respondent, that the claim now made for a sum of over Rs.2 crores is a speculative claim. The conduct of the respondent in failing to disclose the true extract of its income for purposes of taxation, though condemnable, does not create a right in the petitioner to claim that the amounts which had been shown by the respondent as loans received from fictitious persons, are amounts belonging to the petitioner and lent by it to the respondent. The petitioners have not made any such claim before the income-tax authorities. The alleged loans have been treated by the Income-tax Department as income of the petitioner and tax has been levied thereon. Having regard to the nature of the claim, and the objections thereto raised by the respondent and the conduct of the parties, the debt claimed, except to the extent admitted besides being barred by limitation must be held to be a bona fide disputed debt for which the company has a prima facie defence. The petitioner in the circumstances is only seeking to pressurise the company to pay a disputed debt. A winding up petition for such a purpose will not lie."
(13) In the case of Jay Bharat Credit Ltd. (supra), the Bombay High Court has observed thus:-
"21. The distinction between articles 36 and 37 of the Limitation Act has been well brought about by the Allahabad High Court in Arjun Sahai v. Pitamber Das AIR 1963 All 278, where it is specifically held that the mere fact that a bond contains a default clause of that nature would not necessarily make article 75 (old) applicable, and that article applied only to those cases where the provision relating to default clause laid down that on default being made in payment of one or more instalment, the whole amount has to fall due. It would not apply in cases where a default may exist in a different form, for example, where the right of brining the suit is confined to recovering the amount of each instalment in respect of which default may have been committed. It will be seen that in clause 3(b) of the agreement, all that is provided is that, on a default, the defaulting company would be liable to pay the interest @ 3% per month. There is no clause suggesting that whole of the amount would become due and recoverable on a single or more defaults. I respectfully agree with the law laid down in the above mentioned ruling.
22. The end result of all this discussion would be that a suit would clearly be barred by limitation on the date on which the petition under section 433 of the Companies Act was filed. In that view, the petition itself would be of no consequence and will be required to be dismissed as there is a valid and bona fide defence of limitation available to the respondent company."
(14) It would also be advantageous to refer to the judgment of the Apex Court in the case of Madhusudan Gordhandas and Co., Vs. Madhu Woollen Industries Pvt. Ltd., reported in (1972) 42 Company Cases 125 (S.C.), wherein it has been observed as under:-
"Two rules are well settled. First, if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. The court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable. (See London and Paris Banking Corporation, In re [1875] LR 19 Eq.444). Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been done properly was not allowed. (See Brighton Club and Norfolk Hotel Co.Ltd., In re [1865] 35 Beav. 204).
Where the debt is undisputed the court will not act upon a defence that the company has the ability to pay the debt but the company choses not to pay that particular debt. (See A Company, In re [1894] 94 SJ 369; [1894] 2 Ch 349 (Ch D)). Where, however, there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantify the debt precisely. (See Tweeds Garages Ltd., In re [1962] Ch 406; [1962] 32 Comp Case 795 (Ch D)). The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law, and, thirdly, the company adduces prima facie proof of the facts on which the defence depends.
Another rule which the court follows is that if there is opposition to the making of the winding-up order by the creditors the court will consider their wishes and may decline to make the winding-up order. Under section 557 of the Companies Act, 1956, in all matters relating to the winding-up of the company the court may ascertain the wishes of the creditors. The wishes of the shareholders are also considered, though, perhaps, the court may attach greater weight to the views of the creditors. The law on this point is stated in Palmer's Company Law, 21st edition, page 742, as follows :
"This right to a winding-up order is, however, qualified by another rule, viz., that the court will regard the wishes of the majority in value of the creditors, and if, for some goods reason, they object to a winding-up order, the court in its discretion may refuse the order.' The wishes of the creditors will, however, be tested by the court on the grounds as to whether the case of the persons opposing the winding-up is reasonable; secondly, whether there are matters which should be inquired into and investigated if a winding -up order is made. It is also well-settled that a winding-up order will not be made on a creditor's petition if it would not benefit him or the company's creditors generally. The grounds furnished by the creditors opposing the winding up will have an important bearing on the reasonableness of the case. (See P & J. Macrae Ltd. In re [1961] 1 All ER 302; [1961] 31 Comp Case 424 (CA)."
It is beyond dispute that the machinery for winding up will not be allowed to be utilized merely as a means for realising its debts due from a company. In Amalgamated Commercial Traders (P.) Ltd. vs. Krishnaswami (A.C.K.)[1965] 35 Comp Case 456, 463 (SC) this court quoted with approval the following passage from Buckley on the Companies Acts, 13th edition, page 451:
"It is well-settled that a winding-up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding-up order but really to exercise pressure will be dismissed, and under circumstances may be stigmated as a scandalous abuse of the process of the court."
(15) Similarly, a view has been expressed by the Apex Court in the case of Pradeshiya Industrial & Investment Corporation of U.P. Vs. North India Petrochemicals Ltd., reported in (1994) 3 SCC 348, wherein the Apex Court has held that where there exists bonafide dispute and the dues are not admitted, the winding up petition is required to be dismissed.
(16) Considering the facts of this case, correspondence between the parties, affidavits and counter affidavits, it appears that the debt is not an admitted debt and there are bonafide dispute by the respondent Company and therefore, the present case would not fall under Section 433(e) of the Act.
(17) Further the contention is raised by the respondent to the effect that the debt is a time barred debt for which Mr. Jani has relied upon the case of Vijayalakshmi Art Productions (supra) as well as the case of Jay Bharat Credit Ltd. (supra). Considering the case on hand and the pleadings as it has been held that the debt itself is not an admitted debt and a bonafide dispute is raised by the Company, it is not necessary to examine this aspect.
(18) Considering the facts of the case on hand and the record of the petition including the notice, affidavit and counter affidavit, it appears to the Court that the debt is not admitted and there are bonafide disputes raised by the respondent Company. In reply to the statutory notice, the respondent Company has raised its own claim over the petitioner Company and therefore, the case on hand would not fall under Section 433(e) of the Act. Considering the affidavit, affidavit in reply and the annexures including the balance sheet of the respondent Company, it appears that the respondent Company is a going concern and therefore, it cannot be said that the respondent Company has lost its financial substratum.
(19) For the reasons stated above, this petition fails and is accordingly dismissed.
[R.M.CHHAYA, J.] mrpandya Top