2002 (10) TMI 693 - HC - Companies Law

Issues Involved:
1. Whether the petitioner is entitled to any monies from the respondent.
2. Whether the respondent took on a joint and several liability for alleged dues of Skyline NEPC Ltd.
3. Whether there was novation to the terms of the Tripartite agreement dated 6-5-1997.
4. Whether the agreement dated 6-5-1997 is enforceable.
5. Whether the suit in C.S. No. 998/99 is barred under Order II Rule 2 of CPC.
6. Whether the suit in C.S. No. 11/00 is barred under Order II Rule 2 of CPC.
7. Whether IOC was entitled to appropriate and adjust the amount paid by NEPC India Ltd. towards claims against Skyline without any authority.
8. Whether IOC had any right to appropriate the amounts paid prior to 6-5-1997 towards Skyline dues.
9. Whether NEPC India Ltd., having discharged the liability and made payment in excess, is liable to be proceeded against.
10. Whether the petitioner, as a secured creditor who has wasted the security, can maintain the petition.
11. Whether the petition can be maintained when it has not been served on the Registered Office.
12. Whether the petitioner, having exercised its right to proceed against the security, is entitled to maintain the company petition.
13. Whether a company petition based on a mere acknowledgment without supporting statement of accounts is maintainable.
14. Whether mere entries in account are sufficient to fasten a liability.
15. Whether there is any liability based on the documents produced by the petitioners.
16. Whether the petitioner can proceed against the guarantor without proving the debt due from the principal debtor.
17. Whether the petitioner has discharged its burden of stating when and how the debt fell due.

Detailed Analysis:

Issue 1: Whether the petitioner is entitled to any monies from the respondent.
The petitioner has established that NEPC India Limited owes Rs. 6 crores and Skyline NEPC Limited owes Rs. 13 crores. The respondent's claim that no money is owed is unsupported by evidence. The agreements and acknowledgments of liability by the respondent affirm the petitioner's entitlement to the monies.

Issue 2: Whether the respondent took on a joint and several liability for alleged dues of Skyline NEPC Ltd.
The tripartite agreement dated 6-5-1997 and subsequent agreements confirm that NEPC India Limited and Skyline NEPC Limited are jointly and severally liable for the dues. The respondent's argument that it did not assume such liability is refuted by the clear terms of the agreements.

Issue 3: Whether there was novation to the terms of the Tripartite agreement dated 6-5-1997.
The subsequent agreement dated 20-9-1997 does not constitute a novation but rather an additional agreement for specific purposes. The original tripartite agreement remains enforceable.

Issue 4: Whether the agreement dated 6-5-1997 is enforceable.
The agreement is supported by consideration, including the forbearance from legal actions by the petitioner. The respondent's claim of lack of consideration is unsubstantiated.

Issue 5: Whether the suit in C.S. No. 998/99 is barred under Order II Rule 2 of CPC.
This issue is for the civil court to decide. However, the company petition was filed when only one suit, C.S. No. 425 of 1997, was pending, and thus, the petition is not barred.

Issue 6: Whether the suit in C.S. No. 11/00 is barred under Order II Rule 2 of CPC.
Similar to Issue 5, this is a matter for the civil court. The company petition remains unaffected by the pendency of multiple suits.

Issue 7: Whether IOC was entitled to appropriate and adjust the amount paid by NEPC India Ltd. towards claims against Skyline without any authority.
The joint and several liability clause in the agreements allows the petitioner to appropriate payments against the dues of either company. The respondent's claim lacks merit.

Issue 8: Whether IOC had any right to appropriate the amounts paid prior to 6-5-1997 towards Skyline dues.
Given the joint and several liability, the petitioner had the right to appropriate payments as necessary. The respondent's statement of account is unsupported and unreliable.

Issue 9: Whether NEPC India Ltd., having discharged the liability and made payment in excess, is liable to be proceeded against.
The petitioner can appropriate payments against the liability of either company due to the joint and several liability. There is no evidence that the respondent has overpaid.

Issue 10: Whether the petitioner, as a secured creditor who has wasted the security, can maintain the petition.
The petitioner has demonstrated that the securities offered are insufficient to cover the liability. Thus, the petition is maintainable.

Issue 11: Whether the petition can be maintained when it has not been served on the Registered Office.
The statutory notice was sent to the Registered Office as per the records. Even if the office had moved, the notice was received, and the respondent continued to use the old address. The petition is maintainable.

Issue 12: Whether the petitioner, having exercised its right to proceed against the security, is entitled to maintain the company petition.
The petitioner has shown that the security is insufficient. The company petition is therefore maintainable.

Issue 13: Whether a company petition based on a mere acknowledgment without supporting statement of accounts is maintainable.
The respondent has acknowledged the liability, making the filing of a statement of account unnecessary. The petition is maintainable.

Issue 14: Whether mere entries in account are sufficient to fasten a liability.
The respondent's acknowledgment of liability supports the petitioner's claim. The entries in the account are corroborated by the agreements.

Issue 15: Whether there is any liability based on the documents produced by the petitioners.
The documents, including agreements and acknowledgments, establish the respondent's liability.

Issue 16: Whether the petitioner can proceed against the guarantor without proving the debt due from the principal debtor.
The respondent's liability is joint and several, not merely as a guarantor. The petitioner can proceed against the respondent directly.

Issue 17: Whether the petitioner has discharged its burden of stating when and how the debt fell due.
The petitioner has provided sufficient details and documents showing the debt's existence and due dates. The burden has been discharged.

Conclusion:
The petitioner has established a prima facie case for admission of the company petition. The respondent has acknowledged its liability, and the defenses raised are not bona fide. The petition is admitted, and the petitioner is directed to advertise the petition for winding up.

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