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TMI Blog2017 (5) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... s of all the three matters being identical were heard together for the purpose of considering admission of these petitions and are decided by a common order. 3. Some of the relevant facts for the purpose of deciding whether these petitions shall be admitted or not are as under :- 4. Insofar as Company Petition No.496 of 2014 is concerned, it is the case of the petitioner that the petitioner gave loan to the respondent on 19th March,2012 in the sum of Rs. 50,00,000/- by a cheque. The said amount was repayable by the respondent with interest at the rate of 12% per annum. The respondent vide its letter dated 16th December,2012 acknowledged its liability to the petitioner in the said sum of Rs. 50,00,000/- and assured repayment of the said loan with interest at the rate of 12% per annum thereof. The respondent handed over to the petitioner a post dated cheque dated 16th March,2013 for Rs. 50,00,000/- in favour of the petitioner and also handed over another cheque dated 15th December,2012 for Rs. 1,35,000/- towards interest component on the amount of Rs. 50,00,000/- to the petitioner. 5. On 4th April, 2013 the petitioner deposited the said postdated cheque with his bankers viz. Citi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 and 17th December,2012. The other facts in the said petition are identical to the facts in Company Petition No.496 of 2014. According to the petitioner as on the date of filing of the petition, the respondent is liable to pay a sum of Rs. 1,09,27,270/- and further interest at the rate of 18% per annum from the date of filing company petition till realization. 10. Insofar as Company Petition No.498 of 2014 is concerned, the petitioner had granted loan of Rs. 50,00,000/- to the respondent vide cheque dated 19th March,2012. The other facts in Company Petition No.498 of 2014 are identical to the facts of Company Petition No.496 of 2014. According to the petitioner, as on the date of filing of the petition, the respondent is liable to pay a sum of Rs. 54,63,635/- with further interest thereon at the rate of 18% per annum from the date of filing of the petition till realization. 11. Mr. Jagtiani, learned counsel appearing for the petitioner invited my attention to the annexures to the company petitions and also to the allegations made in the affidavit in reply dated 5th December,2014. Mr. Jagtiani placed reliance on the order passed by this court on 24th February,2014 in Summons f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the provisions of Bombay Money Lenders Act, 1946 would have given rise to triable issues, but the suit was based on dishonoured cheques which were issued towards refund of the loan and were negotiable instruments issued in consideration of an antecedent transaction viz. the loan. 14. It is submitted by the learned counsel for the petitioner that no such plea has been raised by the respondent in the affidavit in reply filed in any of these petitions. It is submitted that the provisions of Bombay Money Lenders Act, 1946 does not apply to the transaction in question between the parties. He submits that the winding up petitions filed by the petitioner in the aforesaid three matters are not for the recovery of any amount but are filed for seeking winding up of the respondents. He submits that in any event, in these three cases also the petitioner has filed winding up proceedings based on the dishonoured cheques and thus the principles laid down by this court in the said judgment in case of M/s. Ashok Commercial Enterprises & Anr. (supra) would apply to the facts of this case. 15. Insofar as the plea of the respondent in the affidavit in reply that the cheques were issued and were ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed by the respondent herein against the said order passed by the Division Bench of this court is also dismissed. 18. Learned counsel appearing for the petitioner also invited my attention to the order passed by this court in Company Petition No.136 of 2014 filed by M/s.Ashok Commercial Enterprises against the respondent herein. It is submitted by the learned counsel that this court has rejected various contentions raised by the respondent and has admitted the said Company Petition No.136 of 2014 against the respondent herein. 19. Insofar as the CDR proposal relied upon by the respondent is concerned, it is submitted by the learned counsel for the petitioner that the said CDR scheme has already failed which is noticed by this court in the order dated 11th April,2017 in Company Petition No.136 of 2014. 20. Mr. Purohit, learned counsel appearing for the respondent on the other hand invited my attention to the averments made in paragraphs 10 to 14 of the company petition and submits that the statutory notice was not served at the registered office address of the respondent but was served at the administrative address of the respondent and thus the petition itself is not maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed counsel for the petitioner in rejoinder invited my attention to the contents of paragraphs 4, 7 and 9 of the statutory notice annexed at Ex.'C' to the petition and would submit that by the said notice, the petitioner had called upon the respondent to pay a sum of Rs. 50 lacs based on the dishonoured cheque. He submits that the loan given by the petitioner to the respondent was an anticipated transaction. There was no writing executed between the parties giving such loan. The respondent had along with its covering letter dated 16th December,2012 had acknowledged the said amount and had issued post-dated cheque towards the repayment of the said loan. It is submitted that the order passed by S.C. Gupte, J. on 24th February,2014 and the order passed by the Division Bench of this court in Appeal (L) No.252 of 2014 would squarely apply to the facts of this case. 24. Insofar as judgment of this court in case of M/s.Rushabh Precision Bearings Ltd. (supra) relied upon by the learned counsel for the respondent is concerned, Mr.Jagtiani, learned counsel for the petitioner invited my attention to the paragraphs 10 to 12 of the said judgment. It is submitted that in the said judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as the issue raised by the respondent that the transaction between the petitioner and the respondent was a money lending transaction and would fall within the definition of loan under section 2(a) of the Bombay Money Lenders Act, 1946 and in view of the petitioner not holding the money lending licence, company petition itself is not maintainable being hit by section 10 of the Bombay Money Lenders Act, 1946 is concerned, this court in the order dated 24th February,2014 in Summons for Judgment No.21 of 2013 filed against the respondent herein has considered this issue at length. This court after adverting to four judgments of this court including the judgment in case of M/s.Rushabh Precision Bearings Ltd. (supra) has rejected the plea of the respondent raised in the said summons for judgment. This court in the said order held that had the suit for recovery of a loan, those defences raised by the respondent herein under the provisions of Bombay Money Lenders Act, 1946 would have given rise to triable issue but the suit was based on the dishonoured cheque and thus those defences were untenable. 28. The Division Bench of this court in the appeal filed by the respondent herein has als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes into force; (b) the powers of a Court of Wards, or an Official Assignee, a receiver, an administrator or a Court under the provisions of the Presidency-towns Insolvency Act 1909, or the Provincial Insolvency Act, 1920, or any other law in force corresponding to that Act, or of a liquidator under the Companies Act, 1956, to realize the property of a moneylender." 31. A perusal of section 10 of the said Bombay Money Lenders Act, 1946 provides that if a money lender who has granted a loan or advance did not have money lending licence at the time when such loan or advance was granted and if the provisions of the said Bombay Money Lenders Act applies to those transaction, no court can pass such a decree in favour of the money lender. In my view the said provision will not be attracted to the winding up proceedings. The winding up proceedings are not filed for recovery of any amount of loan but is for seeking winding up of the respondent company under the provisions of sections 433 and 434 of the Companies Act, 1956. Be that as it may, the onus was on the respondent to prove that the petitioner was a money lender and was carrying on business of the money lending. The respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to revive. This court has also held that the petitioner in that case being an unsecured creditor is not a party to the said joint lender forum and thus even if any decision is taken by Joint Lenders Forum at some stage in future, the said decision would not be binding on the unsecured creditors like the petitioner. In the said judgment, this court has noticed that large number of creditors have already filed winding up petitions against the respondent. It is brought on record in the CDR scheme that the respondent has admitted its liabilities to the secured creditors in an aggregate sum of Rs. 2912,90,39,247/- as on 30th November, 2015 to its secured creditors. 36. Several proceedings are also filed before DRT against the respondent. Indian Overseas Bank has already filed 52 original applications before Debt Recovery Tribunal, Bombay against the respondent for recovery of over Rs. 1123,19,62,542/-. This court also noticed that the account of the respondent has been declared as fraudulent by the secured creditors in the CDR meetings and all the lenders have already exited and have decided to file the recovery proceedings against the respondent. The respondent though had applied be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Navshakti (in Marathi) as also in the Maharashtra Government Gazette. Any delay in publication of the advertisement in the Maharashtra Government Gazette, and any resultant inadequacy of notice shall not invalidate such advertisement or notice and shall not constitute non-compliance with this direction or with the Companies (Court) Rules, 1959. (d) The petitioner shall deposit Rs. 10,000/- towards publication charges with the Prothonotary & Senior Master, under intimation to the Company Registrar, within three weeks from the date of admission, failing which the petition shall stand dismissed for the non-prosecution without further reference to the Court. After the advertisements are issued, the balance, if any, shall be refunded to the petitioner. (e) The service of the petition under Rule 28 of the Companies (Court), Rules, 1959 shall be deemed to have been waived. (f) In view of the fact that this court has already appointed the Official Liquidator as the provisional liquidator in Company Petition No.136 of 2014, prayer for appointment of the Official Liquidator as provisional liquidator is not considered by this court at this stage. (g) The petitioner however will have liber ..... X X X X Extracts X X X X X X X X Extracts X X X X
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