2009 (3) TMI 575 - HC - Companies Law

Winding up - Circumstances in which a company may be wound up - Held that - The appellants (the petitioning creditors) have failed to make out the very basic requirement for a company petition to be received. Therefore, the Trial Court, in our opinion, was not required to elaborately examine the merits of the defence. In spite of this legal position, the Trial Court examined the defence and on such examination did not find the defence to be moonshine. We are also of the opinion that the defence put up by the company is not so far fetched as to be discarded as sham, bogus or moonshine. In fact, the Trial Court holds that it falls in the grey area between improbable and impossible. But we are of the opinion that the defence put forward by the company is possible as well as probable. Parties are yet to lead oral as well as documentary evidence. This cannot possibly be evaluated by the Company Court in the summary proceedings. Appeal dismissed.

Summary

Issues Involved:
1. Allegation of debt owed by the company to the appellant.
2. Defense raised by the company regarding fraud and misappropriation by Mr. Harsh Bajoria.
3. Evaluation of the company's defense in the context of winding-up proceedings.
4. Analysis of whether the debt is bona fide disputed.
5. Applicability of legal precedents and principles in the context of winding-up petitions.

Detailed Analysis:

1. Allegation of Debt Owed by the Company to the Appellant:
The appellant claimed that the company owed Rs. 1,15,59,525.86, including interest, based on a series of temporary accommodation loans provided between February 2002 and October 2003. Despite repeated requests and statutory notices, the company failed to repay the debt, leading to the filing of a winding-up petition.

2. Defense Raised by the Company Regarding Fraud and Misappropriation by Mr. Harsh Bajoria:
The company, in its defense, alleged that Mr. Harsh Bajoria, who managed the company at the time, had defrauded it of Rs. 3,54,50,000. The company claimed that Bajoria used the company to launder money and siphon off funds to other entities controlled by him, including Fast-track Real Estate and Mitsubishi. The company argued that the transactions in question were manipulations by Bajoria to defraud the company.

3. Evaluation of the Company's Defense in the Context of Winding-Up Proceedings:
The Trial Court evaluated the defense and found that the appellant's claim was based on scant material and sparse details. The court noted the lack of a written agreement, prior demands, or acknowledgment of indebtedness by the company. The court emphasized that the clarity of the debt must be apparent from the petition rather than the inconsistencies in the company's response. The court found that the company's defense was not a mere cloak for its inability to pay debts but raised reasonable triable issues.

4. Analysis of Whether the Debt is Bona Fide Disputed:
The Trial Court held that for a winding-up petition to succeed, the petitioner must establish a clear debt owed by the company and the company's inability to pay it. The court found that the company had presented a bona fide dispute, supported by serious allegations of fraud and misappropriation by Bajoria. The court concluded that the defense raised by the company was not sham or moonshine but fell within the realm of reasonable triable issues.

5. Applicability of Legal Precedents and Principles in the Context of Winding-Up Petitions:
The Trial Court and the appellate court referred to several legal precedents, including the Supreme Court's judgment in Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. and Mediquip Systems (P.) Ltd. v. Proxima Medical System GmbH. The courts emphasized that a winding-up petition could only be successfully resisted if the company showed that the debt was bona fide disputed and the defense was substantial. The courts also noted that complicated questions of fact should be adjudicated in a civil suit rather than in summary winding-up proceedings.

Conclusion:
The appellate court upheld the Trial Court's decision, finding that the appellant failed to establish a clear debt owed by the company. The court agreed that the defense raised by the company was bona fide and substantial, involving serious allegations of fraud that required adjudication in a civil suit. The court dismissed both appeals, affirming the Trial Court's decision to relegate the appellant to pursue the claim in a civil suit, except for the admitted amount of Rs. 1,71,600.