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2019 DIGILAW 339 (RAJ)

Okchand And Company v. V. D. Agro Tech Limited

2019-01-29

SANGEET LODHA

body2019
JUDGMENT 1. This Company Petition under the provisions of Companies Act, 1956 (for short "the Act") has been filed by the petitioner, a proprietorship concern, seeking winding up of the respondent Company-V.D. Agro Tech Limited, on the ground of its failure, neglect and inability to pay the debt. 2. The facts relevant are that the petitioner, a proprietorship concern, during the period from February, 1999 to April, 2000, sold, supplied and delivered to the respondent, a public limited company, mustard seeds (sarso) used for manufacturing of oil, raised invoices and extended the credit facility as per the market practice. The goods supplied were confirmed by the respondent company while issuing relevant Sales Tax Forms i.e. ST-17 (D form) to the petitioner alongwith the details mentioning the dates of invoices, invoice numbers and value of the material supplied by the petitioner. According to the petitioner, after adjusting the payments made, the principal sum of Rs. 8,50,000/- and interest thereon amounting to Rs. 1,88,134/- (total Rs. 10,38,134/-) became outstanding in the companys account as on 31.3.01. The company made payment of Rs. 1,25,000/- during the year 1.4.01 to 31.3.02 and thereafter, no payment was made. It is submitted that as on 30.6.02, a sum of Rs. 11,54,157/- remained outstanding. Despite several reminders, the company failed to clear the said outstanding dues payable by it and therefore, the petitioner sent a notice by registered post with acknowledgment due, but the same was received with the endorsement of refusal. Hence, this petition. 3. A reply to the petition is filed by the respondent company wherein the liability to pay Rs. 11,54,157/- as claimed by the petitioner concern is denied. According to the respondent company, the outstanding amount was paid to the petitioner concern in the month of March, 04 by cheques, details whereof as set out in the petition, are as under:- Cheque No. Amount Date 792650 2,00,000/- 17.03.2004 792651 2,00,000/- 18.03.2004 792653 2,00,000/- 19.03.2004 792654 1,25,000/- 24.03.2004 4. As per the averments made in the reply, no rate of interest was ever fixed by both the parties and thus, there is no question of the respondent company paying interest over the principal sum. The respondent company has also denied the factum of refusal to accept notice stating that the alleged endorsement of refusal to receive the notice is manipulated. 5. The respondent company has also denied the factum of refusal to accept notice stating that the alleged endorsement of refusal to receive the notice is manipulated. 5. The petitioner concern has filed rejoinder to the reply filed stating that outstanding dues of Rs. 11,54,157/- consists of Rs. 7,25,000/- against principal and Rs. 4,29,157/- against interest upto 30.6.02. The petitioner denied to have received cheques No. 792650, 692651, 792653 and 792654 against the outstanding dues of principal a sum of Rs. 7,25,000/-. It is alleged that the assertion of the respondent is not only clearly false and wrong but also mala fide. 6. On behalf of the respondent company by way of an additional affidavit, it was brought on record that aforesaid cheques issued in the name of the petitioner concern drawn on State Bank of Bikaner & Jaipur (SBBJ), Branch Mandi Area, were encashed. In this regard the statement of account issued by the SBBJ, Mandi Area, Sriganganagar is placed on record. 7. The petitioner concern by way of an additional affidavit reiterated that the said cheques were never given to it and thus, there is no question of any cash withdrawal by or on behalf of the petitioner company, who is stationed at Kota from Sriganganagar Branch of SBBJ. 8. After due consideration of the pleadings of the parties, then Company Judge of this court being of the opinion that either of the parties has indulged in falsehood, vide order dated 25.4.06 appointed Deputy Registrar (Judicial) of this court as Inquiry Officer under Section 340 of Cr.P.C. to inquire into the matter whether any cheques were issued and realized by the petitioner or were realized by some other person, who was not authorised by the petitioner and set up by the respondent to defraud the petitioner. 9. The Deputy Registrar (Judicial) after recording the statements of a few witnesses, noticed the fact that there had been cross criminal cases lodged by the parties being FIR No. 160/06 and FIR No. 159/06, whereupon the police ultimately submitted the result in F.R. Nos. 82/06 and 81/06 in a manner that the matter was of civil nature and pending before the High Court. The Deputy Registrar (Judicial) submitted that the court might direct the Superintendent of Police, Sriganganagar to carry out the necessary investigation in relation to Shri Sanjay Kumar, who allegedly received the payment under the cheques in question. 10. 82/06 and 81/06 in a manner that the matter was of civil nature and pending before the High Court. The Deputy Registrar (Judicial) submitted that the court might direct the Superintendent of Police, Sriganganagar to carry out the necessary investigation in relation to Shri Sanjay Kumar, who allegedly received the payment under the cheques in question. 10. The respondent filed objection to the report submitted by the Deputy Registrar (Judicial). After perusal of the report, the court opined that the Deputy Registrar (Judicial) has recorded the statement of the witnesses, but did not give his definite conclusion. Accordingly, the court remitted the matter back to the Deputy Registrar (Judicial) with the direction to comply with the directions issued by this court as aforesaid and submit the report. 11. The successor Deputy Registrar (Judicial) submitted the fresh report. After perusal of the report, then Company Judge vide order dated 25.9.12 observed that the fresh report submitted by the Deputy Registrar (Judicial) on the substance of the matter could only be said to be english version of the report earlier submitted, where the Deputy Registrar (Judicial) again stated that the person received the cheques could be identified in the course of investigation and thereafter, the issue could be sorted out as to whether the said receiving person was related to the petitioner concern or not. The Deputy Registrar (Judicial) again submitted that the matter may be got investigated by the competent police officer and then the matter may be inquired further for reaching to a definite conclusion. 12. After consideration of the report, the court directed the Deputy Registrar (Judicial ) to make inquiry from the Concerning Court of Chief Judicial Magistrate in regard to the aforesaid FRs in relation to the FIRs lodged by the parties and requisitioned both the records. The reports submitted by the Deputy Registrar (Judicial) were directed to be kept in sealed cover. The original cheques as available therein were directed to be placed in separate sealed cover. 13. The record of FIR No. 159/06 and 160/06 requisitioned were received. The arguments were heard by then Company Judge, the order was reserved. However, vide order dated 4.3.14, the matter was directed to be listed for further hearing. Thereafter, the matter was listed for hearing time to time but was adjourned on the request of parties for one or another reason. 14. The arguments were heard by then Company Judge, the order was reserved. However, vide order dated 4.3.14, the matter was directed to be listed for further hearing. Thereafter, the matter was listed for hearing time to time but was adjourned on the request of parties for one or another reason. 14. I have heard the learned counsels for the parties and perused the material on record. 15. As noticed above, according to the petitioner concern as on 30.6.02, an amount of Rs. 11,54,157/- consisting of Rs. 7,25,000/- against principal and Rs. 4,29,157/- against interest was outstanding in the account of the respondent company. Precisely, the stand of the respondent company is that an amount of Rs. 7,25,000/- was paid to the petitioner concern by cheques. It is not in dispute that the cheques issued by the respondent company drawn on SBBJ Branch Mandi Area, Sri Ganganagar were encashed. According to the petitioner concern, Sanjay Kumar who has got encashed the bearer cheques issued in its favour, was not its authorised person rather, he was a person set up by the respondent company to defraud the petitioner. 16. Indisputably, the inquiry reports submitted by the Deputy Registrar (Judicial) pursuant to directions issued by this court do not contain any definite conclusion in respect of the matter directed to be inquired into. As noticed above, in FIR No. 82/06 and FIR No. 160/06 and FIR No. 159/06 lodged by the rival parties, the police has filed negative Final Report stating that the matter is of civil nature. A perusal of the record of the criminal court requisitioned by this court reveals that despite opportunity being granted, no protest petition was filed by the petitioner concern against the negative Final Report and the matter remained pending awaiting the protest petition, if any. 17. Having gone through the material on record including the reports submitted by the Deputy Registrar (Judicial) of this court and the Final Report submitted by the police after investigation, this court is of the opinion that the matter as to whether the amount of Rs. 7,25,000/- alleged to have been paid by the respondent company to the petitioner concern is actually received by the petitioner concern or not cannot be adjudicated upon by this court in the company petition. 18. 7,25,000/- alleged to have been paid by the respondent company to the petitioner concern is actually received by the petitioner concern or not cannot be adjudicated upon by this court in the company petition. 18. The jurisdiction of the Company Court under Section 433 of the Act is discretionary and nobody can seek an order for winding up of a company as a matter of right. It is true that by virtue of provisions of Section 433(e) read with Section 434 (a) of the Act, if a creditor to whom the company is indebted in sum exceeding one lakh rupees, has served on the company, by causing it to be delivered at its registered office, by registered post or otherwise, under his hand requiring the company to pay the sum so due and company has for three weeks thereafter, neglected to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor, would raise presumption regarding inability of the company to pay the debt. But then, such a presumption is a rebuttable presumption which may be rebutted on the basis of existing material. 19. It is also well settled that winding up petition is not alternative form of resolving the debt dispute and the remedy provided for, cannot be permitted to be used for enforcement of the payment of debt, which is disputed by company bona fide. In other words, where the winding up of a company is sought on the ground that the company is unable to pay its debts and there exists substantial and bona fide dispute as to liability of the company to pay the debt as alleged, the petition preferred seeking winding up under Section 433(e), may be rejected at the threshold. 20. In view of the discussion above, this court is of considered opinion that there exists a dispute between the petitioner concern and the respondent company regarding the outstanding dues and thus, in absence of any admitted debt, no case is made out for winding up of the respondent company in terms of provisions of Section 433 (e) of the Act. 21. In the result, the petition fails, it is hereby dismissed. The record of Case No. 18/11 Pawan Kumar Jain v. Suresh Jain & Ors. (FR No. 159/06 & FIR No. 81/06) as also the record of Case No. 23/12 Suresh Jain v. Devendra Kumar & Ors. 21. In the result, the petition fails, it is hereby dismissed. The record of Case No. 18/11 Pawan Kumar Jain v. Suresh Jain & Ors. (FR No. 159/06 & FIR No. 81/06) as also the record of Case No. 23/12 Suresh Jain v. Devendra Kumar & Ors. (FR No. 160/06 & FIR No. 82/06) may be sent back to the court concerned. The record received from State Bank of Bikaner & Jaipur including the original cheques kept in sealed cover shall be returned to the Authorised Officer of the Bank, after taking the receipt while keeping the photo stat copies thereof on record.