2007 (7) TMI 414 - HC - Companies Law

Winding up company resists the creditor s petition for having it wound up on the twin grounds of lack of bona fides on the petitioner s part and the claim being barred by the laws of limitation - Held that - Clause (a ) of the Explanation to section 18 makes it clear that the refusal to pay would not affect the claim. In this case, the company accepts that it received payment but merely asserts that the money stood forfeited. There is acknowledgment of receipt of payment and the denial of liability on some ground. The denial is the justification for non-payment and mere denial, in the face of Explanation ( a) to the section, will not take much sheen off a document that can otherwise be read as an acknowledgment of liability. In the present case, the company acknowledged receiving the payment but claimed, without any reason in support thereof, that the money stood forfeited in the company s hands. No attempt has been made to justify such forfeiture or to rely on any notice that is ordinarily required to be issued prior to forfeiture of any form. The company has not relied on any automatic forfeiture by law. It may as well have suggested that it chose not to pay because the sun shone outside. The company s ground that the petitioner lacks of bona fides is without basis. It is the petitioner which gave the money to the company. Such fact remain undisputed. Who is in control of the petitioner or who is in control of the company is irrelevant once the petitioner is established as the creditor and the company the debtor.The company s defence is completely without basis.

Issues Involved:
1. Bona fides of the petitioner.
2. Claim being barred by the laws of limitation.
3. Acknowledgment of liability under Section 18 of the Limitation Act, 1963.
4. Control dispute within the petitioner company.
5. Adequacy of the company's defense to resist the winding-up petition.
6. Offer of security by the company.

Detailed Analysis:

1. Bona fides of the Petitioner:
The company resisted the creditor's petition for winding up on the ground of lack of bona fides on the petitioner's part. The court found that this ground was without basis. It was undisputed that the petitioner gave the money to the company, and who controlled the petitioner or the company was irrelevant once the petitioner was established as the creditor and the company as the debtor.

2. Claim Being Barred by the Laws of Limitation:
The company argued that the claim was barred by the laws of limitation, suggesting that even if the acknowledgment in its balance-sheet signed on July 6, 2002, was taken into account, the claim was time-barred by the time the proceedings were instituted in July 2006. The company contended that the petitioner failed to show any acknowledgment of liability after July 6, 2002, to keep its claim alive.

3. Acknowledgment of Liability under Section 18 of the Limitation Act, 1963:
The company's response to the statutory notice was scrutinized to determine if it constituted an acknowledgment of liability under Section 18 of the Limitation Act, 1963. The court observed that the company's response acknowledged receiving the payment but claimed the money stood forfeited. The court noted that the denial of liability on some ground, even if absurd, would not affect the acknowledgment of receipt of payment. The court referred to the Explanation (a) to Section 18, which clarifies that refusal to pay does not affect the claim.

4. Control Dispute within the Petitioner Company:
The company claimed that Vinod Kumar Jain was the principal person in control of the petitioner-company and that Pawan Kumar Jain had usurped control, making the demand on the petitioner's behalf. The court found that the underlying insinuation of the company's charge was that it was Vinod's money from one company parked in another Vinod company, which Pawan was now attempting to collect. However, the court held that the control dispute was irrelevant to the creditor-debtor relationship established between the petitioner and the company.

5. Adequacy of the Company's Defense to Resist the Winding-Up Petition:
The company's defense was examined to determine if it was adequate to resist the winding-up petition. The court found that the company's defense was completely without basis. The company's assertion that the money was forfeited was unsupported by any justification or notice required for forfeiture.

6. Offer of Security by the Company:
Counsel for the company offered, without prejudice to the arguments against admitting the petition, that the order of injunction in respect of the Camac Street property may continue if the court found the company's defense to be moonshine. The court accepted this fair offer for security, allowing the injunction to subsist while the petitioner's claim was relegated to a suit. The company was restrained from selling its Camac Street property without first obtaining court leave.

Conclusion:
The court disposed of both the petition and the application without any order as to costs, directing that the petitioner's claim be pursued through a suit within six weeks. The order of injunction on the Camac Street property was to continue until the disposal of the suit, ensuring the petitioner's claim was secured. Urgent photostat certified copies of the judgment were to be issued upon compliance with requisite formalities.

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