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TMI Blog2018 (3) TMI 869X X X X Extracts X X X X X X X X Extracts X X X X ..... at amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, the respondent-company runs a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming. It should also be noted that in the affidavit in reply, there is not even a mention that the company is commercially solvent. On the contrary, there is an email dated 30th July 2014 (Exh.'B') from respondent-company to petitioner and also to Abhishek Aggrawal of Ksure that the company has been declared as nonperforming Asset and its bank account has also been frozen. Thus as each of the companies are unable to discharge their debts, are commercially insolvent and require to be wound up. Company petitions allowed - Company Petition No. 656 of 2013 With Company Petition No. 97 of 2014, Company Petition No. 98 of 2014 and Company Petition No. 99 of 2014 - - - Dated:- 11-1-2018 - K.R. SHRIRAM, J. Mr. Shyam Kapadia a/w. Mr. Darshan R. Mehta and Ms. Krit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 33,72,222 4 10th October, 2014 33,72,222 5 10th November, 2014 33,72,222 6 10th December, 2014 33,72,222 7 10th January, 2015 33,72,222 8 10th February, 2015 33,72,222 9 10th March, 2015 33,72,222 10 10th April, 2015 33,72,222 11 10th May, 2015 33,72,222 12 10th June, 2015 33,72,222 13 10th July, 2015 33,72,222 14 10th August, 2015 33,72,222 15 10th September, 2015 33,72,222 16 10th October, 2015 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, respondent- company filed an affidavit of one Rohit R. Ganage affirmed on 15th September 2017 opposing the petition. The defences raised are as under : (a) Petitioner has suppressed the fact that the petitioners insurance company Ksure, Korea has paid the claim of petitioner and therefore by suppressing this fact, petitioner is attempting unjust enrichment. (b) Petitioner having received the amount from the Insurance Company under the insurance claim, there was no longer a debt outstanding and that petitioner is not a creditor of the company and therefore this petition would not lie at the instance of petitioner; (c) Petitioner is not a creditor within the meaning of Section 433 and 434 of the Companies Act for a debt; (d) The fact that petitioner had already received the amounts under the invoices on the basis of which the petition has been filed, albeit from its insurance claim went unnoticed when these four petitions were filed and respondent company could not bring it to the notice of the Court at the appropriate time. (e) Respondent, therefore, should be released from the statements and undertakings made to this Court in consent terms of ₹ 6,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and V. Temple. There is lacking, amongst other things, what I think is the essence of that case namely that as between themselves and the father, by a bargain which was superimposed upon and subsequent to the original contract between the money lenders and the son, the money lenders obliged themselves to accept the money in settlement, and, although it was held there was no accord and satisfaction, the Court held that they had thereby disabled themselves from suing the original debtor. Here there are no facts resembling those facts, and for that reason I decline to apply a case, decided with reference to an entirely different set of facts, in circumstance to which hitherto nobody has ever suggested that it was applicable. I only want to add one other thing. I hope that the result of this judgment will be that Plaintiffs will realize that they still have whatever may be their full rights accompanied by whatever duties result from the exercise of those rights, notwithstanding arrangements made beyond the scenes between the insurance companies. 10 Further, In the case of Yorkshire Insurance Vs. Nisbet Shipping Co. Ltd. (1962) 2 Q.B. 330, which has been considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Co v. Isaacs. The insurer's rights against the assured cannot be affected by any subsequent contract, or dealing between the assured and a third party. ( Boag v. Standard Marine Insurance Co. Ltd.; West of England Fire Insurance Co. v. Isaacs. Therefore, the Company s submission that the present proceeding is not maintainable on the basis that petitioner had already received money in lieu of its claim against the Company from the insurance company is, in my view, without any basis in law and accordingly rejected. 11. In PVD Plast Mould Industries Ltd. Vs. ING BHF Bank Aktiengesellschaft 2008(144) Company Cases 484, Gujarat, a Division Bench of the Gujarat High Court which had an opportunity to consider a similar situation in respect of a company petition for winding up, and the Court held that the company cannot say that once the insurance company has paid the money to the principal creditor, then the company is not answerable to anybody. The company is still liable. The relevant part of the said judgment reads as under : In the present matter, it is to be seen that the loan was taken by the company somewhere in the year 1993 and the company which claims ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ascertained liability which can be proved only in a Civil Court, in my view, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being un ascertained in any manner whatsoever. On the contrary, the amount claimed, I am satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of ₹ 6,07,00,000/ payable by respondent. 13. It should also be noted that respondent has, in fact, made a false statement in the affidavit in reply that it came to know only in July/August having received the insurance money. The email annexed at 'Exh.1' to the affidavit in reply is a forwarded CC from D. M Pawar of Ganage Group (email ID : [email protected]) sent to his advocate on 28th July 2015. The said D.M. Pawar has forwarded an email that he has received from one Sambhaji Shahapure on 28th July 2018 and from the email, it is seen that the said Mr. Shahapure has received the email from one Abhishek Aggarwal from Ksure on 14th June 2012 that Ksure has paid the insurance claim of petitioner. Despite being aware of the claim being settled by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany with all powers under the Companies Act, 1956. COMPANY PETITION NO. 97 OF 2014 (a) that M/s. Poona Tools Pvt. Ltd. be ordered to be wound up by and under the directions of this Hon'ble Court under the provisions of the Companies Act, 1956. (b) that the Official liquidator, High Court, Bombay be appointed as the Liquidator of the said Company with all powers under the Companies Act, 1956. COMPANY PETITION NO. 98 OF 2014 (a) that M/s. Automotive Metal Stampings Private Limited be ordered to be wound up by and under the directions of this Hon'ble Court under the provisions of the Companies Act, 1956. (b) that the Official liquidator, High Court, Bombay be appointed as the Liquidator of the said Company with all powers under the Companies Act, 1956. COMPANY PETITION NO. 99 OF 2014 (a) that M/s. Ganage Pressings Private Limited be ordered to be wound up by and under the directions of this Hon'ble Court under the provisions of the Companies Act, 1956. (b) that the Official liquidator, High Court, Bombay be appointed as the Liquidator of the said Company with all powers under the Companies Act, 1956. 17. Petitioner&# ..... X X X X Extracts X X X X X X X X Extracts X X X X
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