9911796707
TMI Blog2005 (4) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... not been paid by the respondent-company to the petitioner despite repeated requests, the respondent-company has failed to make said payment either under one or another pretext. Since the petitioner was persistently demanding the amount, the respondent-company issued two cheque Nos. 355540 and 355541 dated 7-2-1995 and 8-2-1995 for Rs. 1 lakh each towards further part payment of the outstanding amount. The said cheques were however dishonoured, the petitioner therefore issued statutory notice on 1-8-1997 making the demand of Rs. 4,93,000 as being outstanding amount of Rs. 2,50,000 towards principal and Rs. 2,43,000 towards interest. Neither any reply was given by the respondent-company nor any payment was made and, hence, the petitioner has no other alternative remedy but to file the present winding up petition before this Court. 3. The respondent-company filed its affidavit-in-reply on 22-2-1993 wherein the facts stated and averments made in the petition were denied. The respondent-company raised the contention in the said affidavit-in-reply that the respondent-company was dealing in the business of finance, sales promotion etc. The petitioner-company was intending to have the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that after the said cheques were submitted by the petitioner to the respondent-company the petitioner was in need of finance and therefore the respondent-company being a finance company and due to the relationship between the parties has given two cheques to the petitioner. It is, therefore, stated that both these transactions are absolutely different and they have no connection with each other. It is, therefore, submitted that the respondent-company had issued cheques to the petitioner and lent Rs. 2.50 lakhs by issuing the cheques on 5-12-1994 towards part payment of agreed loan of Rs. 4.50 lakhs. However, for the remaining amount of the finance which the petitioner-company wanted, Rs. 2 lakhs were to be paid by the respondent-company and therefore, two post-dated cheques were issued on 7-2-1995 and 8-2-1995 for an amount of Rs. 1 lakh each. It is, therefore, submitted that no amount is due and payable by the respondent-company to the petitioner and, hence, the petition is required to be dismissed. 5. The petitioner had filed affidavit-in-rejoinder on 3-7-1998. It was submitted in the said rejoinder that the respondent-company has concocted a story and misused the dual capaci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner before the Court that the affidavit-in-reply filed by Mr. Sanjay K. Dhumal, Director of the respondent-company contained statements which are false to the knowledge of the deponent. In view of the said submissions, the Court has directed the said Mr. Sanjay K. Dhumal, Director of the respondent-company to show cause on 18-9-1998 as to why this Court should not pass order for initiating proceeding against him for perjury. 7. No order was passed for perjury on 18-9-1998. Thereafter, an order was passed by this Court on 14-10-1998 in this petition and Company Petition No. 289 of 1997 recording statement of Mr. N.K. Majmudar, learned advocate for the respondent-company, in the presence of and under the instructions of Director - Mr. Sanjay K. Dhumal, that an overall settlement has been arrived at in respect of the claims made in both these petitions whereby an overall sum of Rs. 16 lakhs was to be paid to the petitioning creditor. Furthermore, it was also agreed and so stated that the interest at the rate of 21 per cent per annum shall be payable on the aforesaid amount on the diminishing balance. It was also clarified that further and incidental terms of the settleme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner in OJ Appeal No. 7/2003 before this Court and the Division Bench vide its order dated 28-2-2003 has allowed the said Appeal and restored the Company Petition No. 336/1997 to the file so as to decide the same in accordance with law. 12. After restoration of the above petition, it has been notified for further hearing on different occasions. The Court has passed an order on 4-12-2003 and observed that in spite of the fact that the Company Petition was admitted in the year 1999 and the Court had even issued perjury notice on 4-9-1998, the respondent-company has not made any payment of the petitioner s dues nor was Mr. Sanjay Dhumal, deponent of the affidavit-in-reply present before the Court. The Court, therefore, issued a bailable warrant for the sum of Rs. 5,000 for securing personal presence of Mr. Dhumal. After service of the said bailable warrant, Mr. Dhumal remained personally present before the Court on 24-12-2003. The Court, thereafter, passed further order on 3-5-2004 and observed that in light of the order dated 1-4-1999 whereby the petition has been admitted and the direction for publication of advertisement has been made, Mr. D.V. Parikh, learned advocate appear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Nitin Shah was very much shareholder of the company and holding 500 shares bearing Distinctive Nos. 3955501 to 3956000. Regarding false defence raised before this Court by Mr. Dhumal on behalf of the respondent-company, Mr. Parikh has submitted that the Court has already recorded these facts in its order dated 4-9-1998 and on that basis perjury notice was issued on Mr. Sanjay Dhumal. He has therefore submitted that this is the fit and appropriate case for issuing the direction to the Registrar to file criminal complaint against Mr. Sanjay Dhumal for committing offence of perjury. 14. Mr. Parikh in support of his submission has relied on the decision of Hon ble Supreme Court in the case of Dhananjay Sharma v. State of Haryana in AIR 1995 SC 1795, wherein it is observed that "any conduct which has the tendency to interfere with the administration of justice of the due course of judicial proceedings amounts to the commission of criminal contempt. The swearing of false affidavits in judicial proceedings not only has the tendency of causing obstruction in the due course of judicial proceedings but has also the tendency of impede, obstruct and interfere with the administration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16. Mr. N.K. Majmudar, learned advocate appearing for the respondent-company, has submitted that as far as Company Petition is concerned, the disputed question of facts are involved and the respondent-company has filed its affidavit through its Director stating that there was no amount due and payable by the Company to the petitioner, on the contrary the Company has to recover the amount from the petitioner. He has further submitted that though the order of admission and advertisement was passed by this Court and though the petitioner has undertaken to place these facts on record, publication of advertisement, till this date nothing has been produced and hence it is clear that no advertisement has been published by the petitioner. The petition therefore deserves to be dismissed only on the ground of want of prosecution and in any case since disputed question of facts are involved the winding up petition would not survive. 17. As far as perjury notice is concerned, Mr. Majmudar has submitted that Mr. Dhumal in his affidavit on 27-9-1998 made it very clear that the petitioner was required to release the amount of instalment with interest at the rate of 18 per cent per annum on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... even intended to misguide this Court. Even without admitting the alleged charge of perjury he has tendered his unconditional apology if the Court has developed the feeling that he has made any incorrect statement before this Court. 18. Mr. Majmudar has further submitted that Mr. Dhumal has filed further affidavit on 28-10-2004, wherein he has stated that he has resigned from the Company vide communication dated 29-3-2003. He has further submitted that while he was Director of the Company, the present Company Petition came to be filed and he had filed affidavit-in-reply on behalf of the respondent-company and considering the averments made in the winding up petition as well as the stand taken by the respondent-company, this Court has issued notice for showing cause as to why the proceedings for commission of offence of perjury should not be initiated. He has further submitted that pursuant to the said notice he has filed detailed affidavit on 27-9-1998, wherein he has tendered unconditional apology. In this affidavit he has also again tendered unconditional apology and prayed to shower mercy on him without going into the merits of the matter. He has further submitted that even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d and duly advertised on 19-7-1999. Mr. Parikh, learned advocate appearing for the petitioner, has undertaken before this Court to verify record and place the same in record if necessary affidavit for the same has not been filed. The Court has gone through the entire record and also verified from the office and yet neither any affidavit in support of the publication of advertisement is on record nor the relevant newspaper cutting containing said advertisement are placed on record. Even after the said order passed on 3-5-2004, nothing is placed on the record so as to convince the Court that the advertisement has already been published. In absence of any docu-mentary evidence placed on record the Court is not in a position to accept the oral submission that the advertisement has been duly published on 19-7-1999. The Court, therefore, without adjudicating the issue as to whether defence raised by the respondent-company is a genuine and bona fide dispute, the Court dismis-ses this petition only on the ground of non-observance of statutory requirements. 21. This will now lead to another issue which is hotly contested before the Court and that is with regard to filing of criminal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the competent Civil Court before whom trial takes place and evidence are led. Only after complete appreciation of the documents and evidence, the Court may come to the definite conclusion. Till such exercise is undertaken it is not possible for the Court to arrive at the conclusion that an offence of perjury is committed merely on the basis of some averments made in the affidavit filed before this Court. The Court, therefore, is of the view that there is nothing on record which suggests that the deponent knew that the facts stated and averments made in the affidavits are not true and correct or that they are false and frivolous. This motive can be attributed only after undergoing full-fledged trial. The discrepancies which are pointed out by the petitioner with regard to other proceedings before BIFR do not lead the petitioner s case any further. First of all the present deponent has not filed the affidavit or produced the details before BIFR towards which the attention of this Court was drawn and even otherwise the Court cannot take cognizance of those materials which are produced before the other adjudicating authorities. The decisions of the Hon ble Supreme Court which are cite ..... X X X X Extracts X X X X X X X X Extracts X X X X
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