2018 (6) TMI 647 - HC - Companies Law

Winding up of company - according to the petitioner, the allegation made by the company that the said memorandum of settlement is vitiated by any fraud or coercion or undue influence or that the said memorandum of understanding is not binding upon the company or that the latter paid ₹ 8.5 lakhs to the petitioner independent of the said memorandum of settlement or that after payment of ₹ 8.5 lakhs the company owes no money to the petitioner are all afterthoughts and devoid of any merit - Held that - I am unable to convince myself to hold that the company has been able to either make out any bona fide defence to the claim of the petitioner or that it has adduced any prima facie proof of facts on which it based its defence in the affidavit-inopposition to the claim of the petitioner for ₹ 15,24,295.00. Lastly, when the company has all along made payments to the petitioner in terms of the said memorandum of settlement dated September 25, 2014 its belated denial of the validity of the said terms of settlement can hardly be accepted as a defence of any substance to the claim of the petitioner in this application. The petitioning creditor is entitled to the sum of ₹ 15,24,295.00/-, together with interest at the rate of 9%, per annum from May 15, 2015 till realisation. The winding up application shall be advertised once in the English newspaper, The Statesman and once in the Bengali newspaper, Bartaman by May 10, 2018.

Summary

Issues Involved:
1. Petition for winding up of the respondent company.
2. Alleged dues and dishonoured cheques.
3. Memorandum of settlement and its terms.
4. Allegations of fraud, coercion, and undue influence.
5. Maintainability of the winding-up petition.
6. Bona fide dispute and the company's defense.

Detailed Analysis:

1. Petition for Winding Up of the Respondent Company:
The petitioner sought the winding up of the respondent company on the grounds of unpaid dues amounting to ?15,24,295.00, as per a memorandum of settlement dated September 25, 2014. The petitioner claimed that the company and the firm admitted their liabilities but failed to fulfill the payment obligations.

2. Alleged Dues and Dishonoured Cheques:
The petitioner imported goods and sold them to the company and the firm on a high sea sales basis. The company owed ?17,59,128/- and the firm owed ?6,15,167/- as of March 31, 2014. Several cheques issued by the company were dishonoured, leading to proceedings under Section 138 of the Negotiable Instruments Act, 1881, and a police complaint.

3. Memorandum of Settlement and Its Terms:
A memorandum of settlement was executed on September 25, 2014, where the company and the firm admitted their dues and agreed to pay ?20 lakhs in installments. The company issued nine post-dated cheques, but only some were honored. The petitioner claimed that the company defaulted on the payments, leading to the revocation of concessions and the full amount becoming payable with interest.

4. Allegations of Fraud, Coercion, and Undue Influence:
The company contested the petition, alleging that the memorandum of settlement was signed under coercion by the police at the behest of the petitioner. The company claimed it owed only ?8.50 lakhs, which it paid, and planned to file a civil suit to declare the settlement invalid due to fraud and undue influence.

5. Maintainability of the Winding-Up Petition:
The company argued that the petition was not maintainable as the petitioner was also seeking dues from the firm and had initiated criminal proceedings. The company claimed double jeopardy and contended that the petitioner should file a civil suit for enforcement of its rights under the settlement.

6. Bona Fide Dispute and the Company's Defense:
The court examined whether the company's defense was bona fide and substantial. The company admitted to paying ?8.50 lakhs but failed to provide proof of an additional ?3,31,379/- allegedly paid in cash. The court found no contemporaneous documents from the company disputing the settlement or the issuance of cheques. The company had not filed any suit challenging the settlement's validity.

Conclusion:
The court found that the company had no bona fide defense to the petitioner's claim and had not provided prima facie proof of its allegations. The petition for winding up was admitted for ?15,24,295.00 with interest at 9% per annum from May 15, 2015, until realization. The winding-up application was ordered to be advertised in specified newspapers.

Judgment:
The winding-up application was admitted, and the petitioning creditor was entitled to the claimed amount with reduced interest. The application was to be advertised, and the case was listed for further proceedings. Urgent certified copies of the judgment were made available to the parties.