2013 (10) TMI 177 - HC - Companies Law

Winding up Petition u/s 433(e) and 433(f) read with Section 434(1)(a) of the Companies Act Held that - There was no merit in the defence sought to be raised by the respondent-company - Even assuming for the sake of argument that the lease deed, being an unregistered document, cannot be looked into for the purpose of ascertaining the monthly rent, since the respondent-company never disputed the amount of rent payable for the premises and in fact even admitted the same in the counter, the petition must be held to be maintainable - Firstly, in the notice issued by the petitioner, it was clearly mentioned that the monthly rent was exclusive of the maintenance charges directly payable to the maintenance agency and the electricity and water charges. Amount of Rent - There was no denial about the amount of the rent - There is no denial in the counter, denying the averment of the petition that the rent in respect of the premises was fixed by the parties at Rs.3,25,000/- per month - Considering these facts, it was clear that even if the lease deed was not to be looked into, it had otherwise been proved that the rent for the premises was Rs.3,25,000/- per month. The petitioners have not been negligent in attending to the requests of the respondent-company - In any case that was not a justification for not paying the agreed rent in time - These were not substantial issues or defences which can successfully be put forth in answer to the present petition for winding up on the ground that the respondent-company was neglecting to pay the rental amounts - It may also be noted that the respondent, despite all the protests about the repairs and maintenance not being properly carried out, vacated the property only in March, 2013 and that too only under orders of this Court. In Manju Bagai vs. Magpie Retail Ltd. 2010 (11) TMI 845 - DELHI HIGH COURT - upon which reliance was placed by the learned counsel for the respondent deals with the question of the liability to pay liquidated damages in the form of rent for the unexpired portion of the lease period of three years - The main question examined in that case was whether the rent payable for the unexpired portion of the lease can be said to be liquidated damages - This was negatived by the Court which held that it cannot be considered as liquidated damages the other issue as to whether an unregistered lease deed can be relied upon by the petitioner was also considered and it was observed that it cannot be - This however was not an impediment to the petitioner in the present case since I have earlier found that even de hors the lease deed there was an admission by the respondent that it had agreed to pay a monthly rent of Rs.3,25,000 - there was no force in the defence sought to be put up on behalf of the respondent - The petition was admitted.

Summary

Issues:
- Petition filed under Section 433(e) and 433(f) read with Section 434(1)(a) of the Companies Act, 1956 seeking winding up of the respondent-company.
- Dispute regarding non-payment of rent and maintenance charges by the respondent-company.
- Defense raised by the respondent regarding lack of proper repair and maintenance of the premises.
- Argument by the respondent that the unregistered lease deed cannot be considered for ascertaining rent payable.
- Examination of evidence and admissions regarding rent payment in the legal proceedings.

Analysis:
1. The petitioner filed a winding-up petition under Sections 433(e) and 433(f) read with Section 434(1)(a) of the Companies Act, 1956, seeking to wind up the respondent-company due to non-payment of rent and maintenance charges.
2. The respondent-company leased premises but failed to pay the full rent and maintenance charges, leading to arrears amounting to Rs. 20,44,500, excluding electricity charges.
3. Despite receiving a notice to clear arrears within 21 days, the respondent did not comply, prompting the petitioner to file the winding-up petition.
4. The respondent raised a defense claiming lack of proper repair and maintenance of the premises, questioning the justification for paying full rent.
5. The respondent argued that the unregistered lease deed should not be considered for determining rent payable, citing a judgment supporting this stance.
6. The petitioner contended that the respondent's admission of the rent amount in legal notices and replies, despite the unregistered lease deed, validated the claim for winding up.
7. The Court found merit in the petitioner's arguments, emphasizing the respondent's acknowledgment of the rent amount and lack of denial regarding rent payment terms.
8. The respondent's defense of premises' maintenance issues was dismissed as routine matters not justifying non-payment of rent, especially since the respondent vacated the property under court orders.
9. The Court distinguished a previous judgment on liquidated damages, affirming that the respondent's admission of the rent amount sufficed for the winding-up petition.
10. Consequently, the Court admitted the petition, listing it for further proceedings on 13th September, 2013, rejecting the respondent's defenses and upholding the petitioner's claims.