9911796707
TMI Blog2012 (4) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... nufacturing and servicing of aircrafts, hovercrafts or other crafts of all types and it also takes up Cloud Seeding, Weather Modification and Atmospheric Projects. It has registered office at Koramangala and presently, it is situated in the place mentioned in the cause-title. 3. The authorized, share capital of the Company is Rs. 10,000,000/- (Rs. One Crore only) divided into 1,00,000 (One Lakh] equity shares of Rs. 100/- each. The amount of capital subscribed and paid up is Rs. 1,00,000/- (Rs. One Lakh only) divided into 1000 (One Thousand) equity shares of Rs. 100/- each. 4. The main objects of the Company, as set out in the Memorandum of Association are to establish, manage, own and do the business of sports complex managers, aero-sports, golf, aqua sports and other outdoor and indoor games including establishment and run and maintain amusement parks and health clubs and baths, gymnasium and yoga centers, etc., to establish, run, maintain, own hotels, restaurants, Highway Hotels, Holiday resorts and also promoting tourism and travel agency and by an amendment to its Memorandum of Articles on 16-12-2009, It also included many other activities in the nature of Cloud Seeding, Wea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms that the Company is unable to pay its debts. The Firm issued the statutory notice of payment signed and dated 11-1-2010 and 28.1.2010 under Section 434(1)(a) of the Companies Act, calling upon the Company to pay the aforesaid dues with interest at 18% p.a. from 26.3.2008 till the date of the repayment, within 21 days from the date of receipt of the notice. Though the notice is said to have been served upon the Company, it neglected to comply the demand made in the notice. 10. The Firm claims that the Company admitted its liability and has failed to pay its debts and therefore, a petition is filed under the aforesaid provisions for winding up. 11. It is further averred that the Company has defaulted in the fulfilment of several contractual obligations with the Government organizations such as National Cadet Corps (NCC) and that the NCC has cancelled its order for 23 out of the 70 Microlite Aircrafts that the Company was to manufacture and supply. It is also averred that the transactions entered into with the NCC. on the face of it, appears to be illegal and that the Company has made false representations to the NCC to award the contract for the manufacture and supply of Microli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ears and there is a running account, the settlement of the accounts has to be done and as there is a commercial dispute between the parties, it is necessary to settle the accounts. 16. Further, the Company contends that it is in existence for the last 16 years having established itself well in various niche areas of aviation and it is solvent and capable of settling lawful debts, if any and in these circumstances, it sought for the dismissal of the petition. 17. It is thereafter that on 24.2.2011, this Court after hearing the counsel for the parties, passed an order admitting the petition holding that there is prima facie material to prove that the Company is due for a sum of Rs. 24,75,128/- as shown in the Balance Sheet arid at the request of the Company, this Court postponed the publication of the petition in the newspaper. 18. Meanwhile on 23-03-2011 Company Application No. 294/2011 came to be filed by the Company requesting this Court, to recall the order dated 24-02-2011 and to rehear the matter by providing an opportunity to the Company and in its application filed under Rule 9 read with Rule 96 of the Companies (Court) Rules. 1959 read with Section 433 (e) and (f) and Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate of posting and the copy has been produced with the application. So also, it contends that the Company is solvent and has sufficient amount in its bank accounts and the copy of the bank account pass book has also been produced. It further contends that the non-production of the reply letter by the respondent company which was in response to the statutory notice is a bona fide mistake and is not intentional. In these. circumstances, it has sought for recalling the order dated 24.2.2011. 20. The Firm has filed its objections reiterating the averments made in the main petition and denying the transaction regarding the lease of the aircrafts and it also claims that the Company has created fictitious documents like the postal certificate, copy of the reply notice, copy of the reply letter, etc., and further contends that the Company is due to the tune of Rs. 29.89.000/- to the Government Flying Training School, Jakkur and that the non-production of the reply letter is not bona fide and it was not produced only because that no reply was given and subsequently, the documents have been created so as to make a show that the Company is solvent and that there is no debt payable. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, which is the Balance Sheet as on 31-03-2009 and the contents of this Balance Sheet are not disputed by the Company. In schedule 'C of this Balance Sheet, the Company has enumerated the unsecured loans and there is an entry for an amount of Rs. 24,75,128/- as unsecured loan payable to M/s. Agni Aviation Consultants i.e., the petitioner Firm. Though this entry is not disputed by the Company, it is the contention on behalf of the Company that there are series of transactions between the Firm and Company, the accounts are not settled and the debt amount of Rs. 24,75,128/- is not a crystallized debt and further, it claims that it is necessary for the parties to sit and reconcile the accounts to arrive at a final figure. 27. In para 8 of its objections to the main petition, the Company admits that a sum of Rs. 24.75,128/- was due as per the entry dated 24.4.2008. But in para 6 of the objection statement, the Company contends that for over seven years, the Firm has taken various services from the respondent Company like leasing of aircrafts, servicing and maintenance of aircrafts, technical support, maintenance personnel etc., for the purpose of these transactions, various monies ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly. So also, when it is sent by registered post, normally, the reply will be sent by registered post. But, as could be seen from the copy of the notice sent by the Company, neither it is sent through an advocate nor by registered post. This conduct on the part of the Company is not a normal conduct. The counsel for the Firm relied upon the decision of the Apex Court reported in State of Maharashtra v. Rashid Babubhai Mulani AIR 2006 SC 825 wherein the Apex Court in respect of a communication sent through certificate of posting observed and held as under: "A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent, by registered post, a receipt with serial number is issued and a record is maintained by the Post Office. But when a mere certificate of posting is sought, no record is maintained by the Post Office either about the receipt of the letter or the certificate issued. The ease with which such certificates can be procured by affixing antedated seal with the connivance of any employee of the Post Office is a matter of concern. The Department of Posts may have to evolve some procedure where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct on the part of the Company indicates that it was gaining time to create documents. 34. Now, coming to the next contention about the dues of the Firm to an extent of Rs. 30 lakhs towards hired aircraft, the particulars regarding the dues of Rs. 16 lakhs at the initial stage and an entry made to that effect in the accounts on 31-03-2008, there was no specific contention in the objection statement to the main petition. Though an application was filed to recall the order in C.A.No.294/2011 on 23-03-2011. the entries with regard to the hired charges of Rs. 30 lakhs in the accounts of the Company were not made available. 35. In Company Application No.863/201 1. the Company has produced the Lease Agreement (Document No. 10) dated 01-04-2007 and as could be seen from the Lease Agreement, the signatories are Mrs. Sapna Sharma, the Director of the Company and Capt. Arvind Sharma, the husband of Mrs. Sapna Sharma, who has signed as the Partner of the Firm. The learned Senior Counsel for the Firm has argued that this document is fictitious and created for the purpose of avoiding payment of the dues, Though this Deed is said to have been executed on the 01-04-2007, it saw the light of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an entry of the dues of Rs. 24.75,128/- and the fact that this debt was due to the Firm is not seriously disputed. 39. In Company Application No.863/2011. the Company has produced the copy of the plaint in O.S. No. 4514/2011 pending on the file of the City Civil Judge at Bangalore, the copy of the written statement filed by the Firm, the list of the documents and perusal of the averments in the plaint reveal an admission on the part of the Company, that a sum of Rs. 24,75,128/- was due to the Firm and deducting this amount from Rs. 30 lakhs, which is said to be due from the Firm to the Company, in pursuance of the ease agreement dated 01-04-2007, it has instituted the suit against the Firm to grant a decree for a sum of Rs 5,24,872/- with interest at 18% p.a.. From these averments, the Company admits the liability of Rs. 24,75,128/- and for the reasons stated supra, so far as the liability of Rs. 30 lakhs is concerned, the documents relied upon by the Firm, prima facie are fictitious and therefore, it cannot be said that there bona fide dispute between the parties as to the liability. The Company though alleges that\there are series of transactions between the parties, it has no ..... 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