2019 (3) TMI 960 - HC - Companies Law

Winding up petition - whether suit prior to filing of winding up petition an impediment against the petitioner in filing the present petition? - calculation of amount due - as submitted claim of interest is based on an alleged oral agreement between the parties and is not in any manner reflected in any written documents exchanged between the parties - HELD THAT - As per the records available with the respondent company, they have accepted a liability of ₹ 50,16,189/- in favour of the petitioner as on 31.03.2008, which is clear from the communication dated 13.08.2010 sent by the respondent company to the Income Tax Department. It is also a matter of fact that TDS certificate had been issued by the respondent company to the petitioner for the said dues. Further in their reply, the respondent company accepted that the amount relied upon by the petitioner was duly received in their account though it was claimed that the same was returned by Mr.R.P.Mittal. Clearly, prima facie amount appears due and payable to the Petitioner. As decided in Bank of Nova Scotia vs. RPG Transmission Ltd 2002 (10) TMI 696 - HIGH COURT OF DELHI mere filing of a proceeding before the DRT would not negate the right of the banks to file a petition for winding up of the respondent company. Hence, in view of the dicta of the Division Bench filing a suit prior to filing of winding up petition may not be an impediment against the petitioner in filing the present petition. By the present petition what the Petitioner seeks is to wind up the Respondent Company. An opportunity should be given to the respondent company to prove its case before a civil court. However, it is necessary to secure the claim of the petitioner. The petitioner has claimed outstanding amount in the notice sent for a sum of ₹ 39,17,007/- which includes interest @ 12% per annum. There is some merit in the plea of the learned counsel for the respondent that the claim of interest is based on an alleged oral agreement between the parties and is not in any manner reflected in any written documents exchanged between the parties. Keeping in view the above facts the principal amount outstanding prima facie payable by the respondent is ₹ 17,57,000/-. Let the respondent deposit a sum of ₹ 20 lacs in court with the Registrar General of this court.

Summary

Issues:
Petition seeking winding up of respondent company under sections 439, 433(e), and 434 of the Companies Act, 1956 based on unpaid loan and interest, respondent's denial of liability, allegations of fraud by former director, discrepancy in account entries, and pending suits by both parties.

Detailed Analysis:

1. Unpaid Loan and Interest:
The petitioner extended a loan to the respondent in 2007, which was partially repaid. An oral agreement for interest payment was allegedly made, but the respondent disputes the amount owed. The respondent acknowledged part of the debt in communication with the Income Tax Department. The petitioner filed a suit for recovery of the outstanding amount.

2. Fraud Allegations and Denial of Liability:
The respondent denies liability, attributing the transactions to the former director who allegedly manipulated accounts and disappeared with records. The new management disclaims any acknowledgment of dues to the petitioner and accuses the former director of fraudulent entries. The respondent claims lack of original records for verification.

3. Legal Precedents and Jurisdiction:
Counsel for the petitioner cites legal precedent to support the filing of a winding-up petition despite pending recovery suits. The court refers to a judgment emphasizing the distinction between winding up proceedings and recovery actions, affirming the right to initiate winding up even after recovery proceedings.

4. Court's Decision and Order:
The court acknowledges discrepancies in account entries and the respondent's acknowledgment of dues in certain communications. It grants an opportunity for the respondent to present its case in a civil court but orders a deposit of a specified amount to secure the petitioner's claim. The court directs the deposited amount to be held in a Fixed Deposit pending the outcome of the suits, emphasizing that its decision does not prejudice the parties in the ongoing litigation.

5. Conclusion:
The court disposes of the petition, allowing the respondent to contest the claim in civil court while securing the petitioner's interest through a court-mandated deposit. The decision reflects a balance between protecting the petitioner's claim and affording the respondent an opportunity to defend its position in the pending legal proceedings.