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TMI Blog2017 (5) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... d 20-8-2010 bears No.1/2010 for a company doing business since 1997 and why despite consultancy being a service chargeable to Service tax, service tax was not deducted and paid to the government. Also extremely odd and suspicious is that the bill No.1/2010 dated 20-8-2010 for alleged consultancy service by the respondent company to CGEPL was signed by Ajay Pareek, brother of Alok Pareek and marked attention to his brother Alok Pareek as director of CGEPL-also director in the respondent company. In the facts and evidence on record a case of a debt of ₹ 20 lac remaining unpaid to the petitioner company despite a winding up notice to the respondent company has been made out. The defence of the respondent company to the winding up petition is malafide, convoluted, mutually destructive and palpably false, what of being bonafide and based on substantial grounds making out a triable issue. No iota of public interest against the winding up has even been urged and cannot be found. - (S.B. Company Petition No.24/2010) - - - Dated:- 7-4-2017 - MR. ALOK SHARMA, J. For The Petitioner : Mr. Sandeep Taneja For The Respondent : Mr. Amol Vyas BY THE COURT: This petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er taken as above, is that the amount of ₹ 20 lacs related to a request made by Alok Pareek Director of the respondent company to the petitioner company under e-mail dated 18-8-2010 for financial assistance to tide over a crisis being faced by the respondent company. As per the aforesaid e-mail, the loan was to be repaid by 31-12-2010. Pursuant to the financial assistance sought, the loan was made over on 23-8-2010, but yet on 17-11-2010, before due and repayable i.e. before 31-12-2010, a notice of winding up purporting to be under Section 433(e) of the Act of 1956 was issued and the winding up petition was filed on 21-12-2010, both prematurely. Hence the winding up petition be dismissed. 5. In rejoinder, the petitioner company has submitted that its specific case set up in the petition is that the loan of ₹ 20 lacs on 23-8-2010 did not relate to the e-mail of 18-8-2010 but, was founded following negotiations on an oral contract, only for a period of one month and to carry interest @ 36% p.a. Thus neither the notice under Section 433(e) of the Act of 1956 was premature, nor was the laying of the winding up petition making it liable to be dismissed. It has been submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated, as is the bill dated 20-8-2010 drawn by the respondent company on CGEPL. It has been submitted that the entire camouflage of a purported dispute sought to be created qua the unpaid debt of ₹ 20 lacs with reference to the purported participation of Arun Kumar Jain, in his individual capacity in the business of CGEPL is absolutely untenable. That defence for one is oblivious of the fact that the petitioner company is a juristic personality independent and distinct from its directors/ shareholders including Arun Kumar Jain. The purported consultancy agreement dated 24-7-2010 between the CGEPL and the respondent company has been signed by one Ajay Pareek, brother of Alok Pareek on behalf of CGEPL and Akshay Kumar Bhargava, co-promoter director of the respondent company along with Alok Pareek, who himself is a witness thereto. The Bill No.1/2010 is made attention by Ajay Pareek for CGEPL to Alok Pareek for the respondent company. It has been submitted that falsity of respondent company being engaged for consultancy by CGEPL for its Solar Power Project is crystal clear from the fact that the Memorandum of Association of the respondent company does not contain any object-main, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n otherwise commercially insolvent as it has also defaulted in making payment to secured creditors, as evident from the notice published in the news-paper in the matter of IDBI Vs. ASK Dairies Private Limited, Recovery Case No.62/2012, before the Recovery Officer, Debts Recovery Tribunal, Jaipur. Heard. Considered. 9. Mr. Sandeep Taneja appearing for the petitioner company submitted that a case of winding up of respondent company is clearly made out in law notwithstanding its desperate and audaciously false defence. The respondent company under its Memorandum of Association was not authroised to do business in the area of solar consultancy. Further the balance-sheet of the respondent company as available does not reflect any business in solar energy or other consultancy. Mr. Sandeep Taneja further pointed out that in para 14 of the reply the respondent company admitted that an unsecured loan of ₹ 20 lacs was advanced to the respondent company. The aforesaid admission is categorical and binding on the respondent company. It is estopped from reneging on it. It has been submitted that the respondent company also admits the receipt of statutory notice dated 17-11-2010 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any to the respondent company obtains. It is neither far fetched nor a sham. It is bonafide based on substantial grounds. While eschewing liability for business failure of CGEPL directly attributable to breaches by Arun Kumar Jain of his obligation to CGEPL, the petitioner company seeks to unjustly force on the ₹ 20 lac advance to the respondent company alleging non payment of the purported disputed debt and seeking its winding up. He submitted that the winding up petition is thus being used to extract disputed amounts from the respondent company and the court must not countenance, such a situation of the abuse of the process of law. 11. No doubt, a winding up petition is not an instrument for recovery of a disputed debt. No doubt when a bonafide dispute as to an alleged debt obtains on plausible grounds which raises a trial issue, a winding up court will not exercise its jurisdiction. But equally true is that where a debt due payable yet unpaid despite a statutory notice is made out, a winding up order is to ordinarily follow unless a case of overarching public interest to the contrary is made out. The policy of law is that company incorporated under the Act of 1956 enjoy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e receipt of the notice addressed to the respondent company's registered office has not been denied. No reply was forthcoming thereto by the respondent company. The debt amount claimed due and payable under the notice not paid. Resultantly the respondent company having neglected to pay despite a notice of winding up, in law is to be deemed to be insolvent. And in the policy of law encapsulated in Section 433(e) of the Act of 1956 liable to be wound up. 16. The defence of the respondent company to the winding up petition instead of being bonafide and based on substantial grounds worsens the case for it, false and mutually destructive as its pleas are. 17. Contention of Mr. Amol Vyas that the notice for winding up sent by the petitioner company on 17-11-2010 was premature as the debt was then not due is wholly baseless, founded as it is only an assumption (not fact) that the loan amount of ₹ 20 lacs was repayable on 31-12-2010 not before. There is nothing on record to buttress the contention. Reliance on Alok Pareek's, Director of respondent company, email of 18-8-2010 for this purpose is without merit. The said e-mail reads as under:- Dear AKJ ji, Refer to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its due debt from the respondent company. Hence the alleged obligation of Arun Kumar Jain to CGEPL or the alleged liabilities of CGEPL to the respondent company under the alleged consultancy agreement of 24-7-2010 cannot be a defence in law, what of bonafide and substantial to the winding up petition. There is substance in the case of the petitioner company that even otherwise both the consultancy agreement of 24-7-2010 and the following bill dated 20-8-2010 between the petitioner company and CGEPL are got up documents, and set up in a desperate attempt to derail the winding up petition. This inter alia not least for the reason that the respondent company has not controverted the allegation specifically made that its Memorandum of Association does not include as the main or even ancillary and incidental objects, business relating to Solar Energy. Nor does the respondent company has any expertise in the field of Solar Energy having exclusively engaged in the business of dairy since its inception in 1997. Further the consultancy agreement dated 24-7- 2010 was signed on behalf of CGEPL by Ajay Pareek, brother of Alok Pareek and Akshay Kumar Bhargava, co-promoter and director with Alo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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