2005 (4) TMI 299 - HC - Companies Law

Summary

Issues Involved:
1. Winding up of the respondent-company under sections 433 and 434 of the Companies Act, 1956.
2. Alleged non-payment of Rs. 4,93,000 by the respondent-company to the petitioner.
3. Allegations of perjury against the Director of the respondent-company.

Detailed Analysis:

1. Winding up of the respondent-company under sections 433 and 434 of the Companies Act, 1956:
The petitioner filed a petition for winding up the respondent-company due to its failure to pay Rs. 4,93,000. The petitioner claimed to have advanced Rs. 5 lakhs to the respondent-company, which partially repaid Rs. 2,50,000, leaving an outstanding balance of Rs. 2,50,000 plus interest. Despite repeated requests, the respondent-company did not fulfill the payment obligations, leading to the issuance of statutory notice and the subsequent filing of the winding-up petition.

2. Alleged non-payment of Rs. 4,93,000 by the respondent-company to the petitioner:
The respondent-company denied the petitioner's claims, arguing that the Rs. 5 lakhs paid was commission for business procured by the respondent-company, not a loan. The respondent-company contended that the petitioner had assured commission and brokerage for sales promotion, which was fulfilled by procuring business worth Rs. 40 lakhs. The respondent-company also claimed that the petitioner was supposed to execute necessary documents for securing finance, which was not done, leading to the dishonoring of cheques issued by the respondent-company. The petitioner countered these claims, asserting that no commission or brokerage was agreed upon and that the respondent-company's defense was fabricated.

3. Allegations of perjury against the Director of the respondent-company:
The petitioner accused the respondent-company's Director of filing false affidavits and misleading the Court. The Court initially issued a perjury notice, directing the Director to show cause. Despite the Director's repeated apologies and explanations, the Court found no conclusive evidence of intentional false statements. The Court emphasized that determining perjury requires a detailed trial and evidence, which was not feasible in the current proceedings. Consequently, the Court discharged the perjury notice, concluding that the discrepancies pointed out did not suffice to establish perjury.

Conclusion:
The Court dismissed the winding-up petition due to non-compliance with statutory requirements, specifically the failure to prove the publication of the advertisement. The Court also discharged the perjury notice against the respondent-company's Director, citing the need for a full-fledged trial to conclusively determine the allegations. The petition was disposed of without any order as to costs.