(Per : HONOURABLE MR.JUSTICE V. M. SAHAI) 1. We have heard learned counsel Mr.R.S.Sanjanwala assisted by learned advocate Mr.Maulik Nanavati for the appellant, learned counsel Mr.Shalin Mehta assisted by learned advocate Ms.Vidhi J.Bhatt for the respondent No.1, learned counsel Mr.J.S.Yadav for the respondent No.2 and learned counsel Mr.Dipen Desai for the respondent No.3.
2. The O.J.Appeals have been filed challenging the orders dated 5.9.2011 and 15.11.2011 passed in Company Petition No.25 of 2011 by which the learned Single Judge has admitted the company petition and directed for publication of notice. The learned Single Judge has stayed the order of one month and that time has been expired.
3. Learned counsel for the appellant has urged that under a mistake, though, the company admitted it's liability in the affidavit filed by Mr.Alok Banerjee, Chief Executive Officer, in para 3 and 4 that an amount of Rs.38.99 lacs is due to the respondent No.1 company. However, this mistake was corrected in the subsequent affidavit dated 4.4.2012 which has been filed in O.J.Appeal No.65 of 2011 subsequent to orders passed by learned Single Judge. On page 44 the letter of the Chief Executive Officer who also acknowledged that there is an outstanding of about Rs.90.00 lacs. The statement of account at page 48 also demonstrate this position. In the second affidavit filed by Mr.Shashi Kant Gupta, who is an authorised representative of the appellant has filed affidavit to the effect that no amount is due.
4. Prima facie, we are of the opinion that, once the Chief Executive Officer has filed affidavit that an amount is due to be paid to the respondent No.1 company, the effect of second affidavit filed by Mr.Shashi Kant Gupta may be considered at the time of hearing of Company Petition. However, at this stage, in view of the decision of the Apex Court in the case of VIJAY INDUSTRIES Vs. NATL TECHNOLOGIES LIMITED reported in (2009) 3 SCC 527, in para 33 and 34 it has been observed as under:
“33. Yet again in M/s. Madhusudan Gordhandas & Co.
v. Madhu Woollen Industries Pvt. Ltd. [(1971) 3 SCC 632], this Court upon considering Amalgamated Commercial Traders (P.) Ltd. (supra) and various other English cases opined as under:
"20. 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). 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 properly was not allowed. (See Re. Brighton Club and Norfolk Hotel Co. Ltd.)"
The Court furthermore opined: (Madhusudan case, SCC p.638, para 21)
(i) Where the debt is undisputed, the court will not act upon a defence that the company has the ability to pay the debt but did not choose to pay that particular debt.
(ii) Where, however, there is no dispute that the company passed the creditor a debt entitled 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.
(iii) 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 adduced prima facie proof of the facts on which the defence depends.”
34. Section 433 of the Companies Act does not state that the debt must be precisely a definite sum. It has not been disputed before us that failure to pay agreed interest or the statutory interest would come within the purview of the word “debt”. It is one thing to say that the amount of debt is not definite or ascertainable because of the bona fide dispute raised thereabout or there exists a dispute as regards quantity or quality of supply or such other defences which are available to the purchaser; but it is another thing to say that although the due as regards the principal amount resulting from the quantity or quality of supply of the goods stands admitted but a question is raised as to whether any agreement had been entered into for payment of interest or whether the rate of interest would be applicable or not. In the latter case, in our opinion, the application for winding up cannot be dismissed.”
5. In view of the above, we are of the opinion that the learned Single Judge did not commit any error in admitting the company petition and directing for publication of public notice. The appeals devoid of any merits and are accordingly dismissed with no order as to costs.
6. In view of dismissal of appeals, O.J.Civil Application No.541 of 2011 in O.J.Appeal No.67 of 2011 does not survive and shall stand dismissed with no order as to costs.
(V.M. SAHAI, J.) (A.J.DESAI, J.) syed/