Nasir Amin Hungund vs M/S. Glasspaane Aluminium (I) ...
2017 Latest Caselaw 1470 Bom

                                                                    9-cp419-15

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               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  ORDINARY ORIGINAL CIVIL JURISDICTION


                       COMPANY PETITION NO.419 OF 2015


      Nasir Amin Hungund                           )
      Age 43 years, Occupation, Business,          )
      Proprietor, Limra Glasfab, carrying on       )
      BUSINESS at 212/4-A, Sattar Compound,        )
      Behind Kurla Police Station, Kurla (W),      )
      Mumbai - 400 007.                            )          ...Petitioner

                  ....Versus....

      M/s.Glasspaane Aluminium (I) Pvt. Ltd.       )
      A Company duly registered under              )
      The Companies Act, 1956, having its          )
      Registered Office at A-754, A-Block,         )
      TTC, MIDC Industrial Area, Central           )
      Pipeline Road, Village Khairane,             )
      Navi Mumbai, District Thane                  )          ...Respondent


      Mr.Manoj P. Gholap for the Petitioner.

      Dr.A. Chandrachud with Ms.Nupur Awasthi i/b Consulta Juris for the
      Respondent.

                                      CORAM : R.D. DHANUKA, J.

DATE : 5TH APRIL, 2017.

ORAL JUDGMENT :-

1. By this petition, the petitioner seeks winding up of the

respondent on the ground that the respondent is unable to pay its

debts.

2. It is the case of the petitioner that during the period

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between 2006 and 2007, the petitioner sold, supplied and delivered

various goods to the respondent. It is the case of the petitioner that

during the period between 1st April, 2006 and 13th July, 2011, the

respondent made various payments to the petitioner. Learned

counsel appearing for the petitioner invited my attention to Exhibit "B"

to the petition and would submit that during the said period, the

respondent had made payment to the petitioner in the sum of

Rs.28,83,330/- and balance outstanding amount payable to the

petitioner was Rs.24,01,215/-. He submits that that the respondent

had made part payment of Rs.50,000/- on 13th July, 2013 in cash. In

support of this submission, learned counsel invited my attention to the

alleged cash voucher dated 11th July, 2011 and 12th July, 2011

alleged to have been made by the respondent to the petitioner in the

sum of Rs.16,000/- and Rs.18,000/- respectively.

3. It is submitted by the learned counsel that since the

respondent did not pay the balance amount to the petitioner, the

petitioner issued notice on 11th February, 2012 to the respondent

calling upon the respondent to pay the sum of Rs.32,98,552.76 ps.

He submits that in response to the said notice of demand, the

respondent called upon the petitioner to supply various documents,

though the same were already supplied by the petitioner to the

respondent vide letter dated 23rd February, 2012.

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4. The petitioner thereafter issued a statutory notice on 1st

May, 2012 at the office address of the respondent calling upon the

respondent to pay the sum of Rs.24,01,125/- with further interest

thereon. The petitioner filed a winding up petition bearing Company

Petition (Lodging) No.569 of 2012 in this Court against the

respondent. On 12th February, 2012, this Court recorded the

statement made by the learned counsel for the petitioner that the said

statutory notice dated 1st May, 2012 was served upon the

respondent at the business address of the respondent and not at its

registered office. This Court accordingly granted a liberty to the

petitioner to withdraw the said Company Petition (Lodging) No.569 of

2012 with liberty to file a fresh petition on the same cause of action

after issuing proper notice in accordance with law.

5. The petitioner thereafter issued another statutory notice on

26th February, 2014 at the registered office of the respondent calling

upon the respondent to pay the sum of Rs.53,12,683/- with further

interest thereon. It is the case of the petitioner that the said statutory

notice was returned unserved by the Post Office with remarks "Left

company. Return to sender" on 13th March, 2014.

6. It is submitted that since the respondent did not make the

balance payment and since there was no response to the statutory

notice, the respondent is unable to pay its debts and thus this petition

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deserves to be admitted.

7. Dr.Chandrachud, learned counsel appearing for the

respondent on the other hand submits that according to the petitioner

the respondent had made various part payments during the period

between 1st April, 2006 to 13th July, 2011. He submits that all

payments except the alleged payment of Rs.50,000/- which was

alleged to have been made by the respondent to the petitioner on

13th July, 2011 were during the period between 2006 and 2008.

8. Learned counsel invited my attention to the notice dated

11th February, 2012 addressed by the petitioner and more

particularly paragraph 3 thereof and would submit that in the said

notice, it is alleged by the petitioner that the last payment of

Rs.15,000/- made by the respondent to the petitioner was on 13th

July, 2011. He also invited my attention to the statutory notice dated

1st May, 2012 and more particularly paragraph 3 thereof, in which

there is a reference to the alleged part payment of Rs.16,000/- made

by the respondent to the petitioner on 13th July, 2011 inclusive of a

deduction of Rs.1,000/- by way of TDS. He submits that there is vast

discrepancy in the amount shown as part payment in the notice of

demand dated 11th February, 2011 and in the statutory notice dated

1st May, 2012 with the statement at Exhibit "B". He submits that in

the statement at Exhibit "B", the petitioner has shown alleged part

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payment of Rs.50,000/- on 13th July, 2011.

9. Learned counsel for the respondent invited my attention to

the affidavit in reply and in particular paragraph 3 thereof raising an

issue of limitation by the respondent. He submits that the said

payment received by the petitioner on 12th January, 2011 was in

respect of different transaction and not in respect of the transaction

which is the subject matter of this company petition. He submits that

even the alleged said voucher annexed at page no.50 of the

company petition are dated 11th July, 2011 and 12th July, 2011,

whereas in Exhibit "B", the date of the alleged part payment is dated

13th July, 2011. He submits that there is no rejoinder filed by the

petitioner to the averments made by the respondent in the reply. He

submits that since on the date of filing of the company petition, the

claims made by the petitioner were barred by law of limitation, the

petitioner ceased to be a creditor of the respondent and thus this

Court cannot entertain this company petition. In support of this

submission, learned counsel invited my attention to the judgment of

the Division Bench of this Court in case of Modern Dekor Painting

Contracts Pvt. Ltd. vs. Jenson & Nicholson (India) Ltd., 1984,

Mh.L.J. 988 and in particular paragraphs 2, 12 and 17.

10. The next submission of the learned counsel for the

respondent is that the statutory notice was not served at the

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registered office address of the respondent notified with the Registrar

of Companies. He invited my attention to pages 69 and 70 of the

petition which shows an endorsement made by the Postman "Left

Company, Return to sender". He submits that it is not clear from the

perusal of the said endorsement made by the Postman, whether the

notice was left at the premises of the respondent or the respondent

company itself had left. He invited my attention to the averments

made in the affidavit in reply in support of his submission that the

registered office of the respondent is at the same address on which

the statutory notice was alleged to have been sent by the petitioner.

He submits that the respondent company is a running concern and

various orders have been placed on the respondent to execute for its

customers.

11. Learned counsel placed reliance on the judgment of the

Supreme Court in case of Landesban Baden - Wurttemberg vs.

Pushkaraj Packaging India Pvt. Ltd., 2016 SCC OnLine Bom 4135

and in particular paragraphs 11 to 13, 15 and 19. He submits that the

petitioner did not make any efforts to serve the respondent even by

way of hand delivery or by any other mode though the statutory

notice was alleged to have been returned with the remarks "left". He

submits that since the statutory notice was not served upon the

respondent by the petitioner at the registered office of the company in

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compliance with section 431(1)(a) of the Companies Act, 1956, the

petition for winding up itself is not maintainable.

12. The last submission of the learned counsel for the

respondent is that several invoices annexed to the petition by the

petitioner are filed in duplicate and the claims are made twice in

respect thereof. In support of this submission, learned counsel invited

my attention to the documents annexed at pages 32, 33, 34, 41, 45,

51, and 54 of the petition. He submits that the last three invoices are

duplicate. He submits that there are various disputed questions of

fact and the defence of the respondent being bonafide and not

moonshine, the company petition for winding up cannot be

entertained.

13. Learned counsel for the petitioner in rejoinder submits that

the respondent was fully aware when the respondent had received

the notice of demand dated 11th February, 2012 that the petitioner

was demanding the sum of Rs.32,98,552.76. He submits that the

respondent did not give its any other address to the petitioner. He

submits that since the packet was returned with the endorsement

"left", the said service was a good service and thus the company

petition filed by the petitioner is maintainable.

14. Insofar as the issue of limitation is concerned, it is

submitted by the learned counsel that the respondent has admitted in

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the affidavit in reply that part payment of Rs.50,000/- was made by

the respondent to the petitioner however, has alleged that the same

was relating to a different transaction. He submits that the defence

raised by the respondent is not bonafide defence and thus the

petition deserves to be admitted.

15. I shall first deal with the issue of limitation raised by the

respondent. A perusal of the averments made in the petition indicates

that according to the petitioner, the transactions between the parties

were during the period between 2006 and 2007. It is the case of the

petitioner that during the period between 1st April, 2006 and 13th

July, 2011, the respondent had made various payments to the

petitioner. The said statement indicates that the last payment

excluding the cash of Rs.50,000/- was made by the respondent on

1st October, 2008. The TDS of Rs.567/- was deducted on 28th

September, 2008.

16. In support of the submission that the respondent had

made part payment of Rs.50,000/- on 13th July, 2011, the petitioner

has placed reliance on two alleged vouchers at Exhibit C-2 which are

dated 11th and 12th July, 2011 for Rs.16,000/- and Rs.18,000/-

respectively. A perusal of the notice dated 11th February, 2012

indicates that it was the case of the petitioner that the respondent had

made last payment of Rs.15,000/- to the petitioner on 13th July,

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2011. In the statutory notice dated 1st May, 2012, the petitioner has

claimed that part payment of Rs.16,000/- was received from the

respondent on 13th July, 2011 inclusive of deduction of Rs.1,000/- on

TDS. Learned counsel for the petitioner is not able to explain the

discrepancies in the amount of the alleged part payment shown in

the vouchers and two notices issued by the petitioner and the amount

reflected in Exhibit "B" to the petition. The alleged vouchers also

shows that the amounts mentioned therein were allegedly paid to the

brother of the petitioner.

17. Be that as it may, the respondent in paragraph 3 of the

affidavit in reply has alleged that the amount received by the

petitioner in cash on 12th January, 2011 was relating to some other

transaction. The petitioner has not filed any rejoinder controverting

this averment made by the respondent. The petitioner is not able to

demonstrate that the said amount of Rs.50,000/- as shown in Exhibit

"B" was by way of part payment in respect of the transactions in

question. If the said entry of Rs.50,000/- is deleted from Exhibit "B",

the claims of the petitioner would be ex-facie barred by law of

limitation.

18. The Division Bench of this Court in case of Modern Dekor

Painting Contracts Pvt. Ltd. (supra) has held that the company

petition for winding up can be entertained only if debt is within time on

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the date of filing of the winding up petition. It is held that the doubt

must be recoverable on the date of filing winding up petition and the

person who is entitled to file such petition has to be a creditor. He has

to satisfy that there was a debt uncertainable or due and payable to

him which he could claim. If the claim is barred by law of limitation on

the date of filing of the petition, the petitioner ceased to be the

creditor and thus the company petition is not maintainable. In my view

the judgment of this Court in case of Modern Dekor Painting

Contracts Pvt. Ltd. (supra) would squarely apply to the facts of this

case. In my view, since the claim of the petitioner was barred by law

of limitation on the date of filing of the petition, the petitioner ceased

to be the creditor of the respondent and thus could not file this

petition.

19. Insofar as the submission of the learned counsel that the

petitioner has already filed the company petition in the year 2012 but

the same was required to be withdrawn in view of the petitioner not

having been issued a statutory notice at the registered office of the

respondent company is concerned, in my view the said petition which

was filed without issuing a statutory notice at the registered office of

the respondent would not save limitation. The letter dated 23rd

February, 2012 addressed by the respondent calling upon the

petitioner to furnish certain details would also not extend the period

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of limitation. It is held in catena of judgments that the correspondence

does not extend the period of limitation unless there is

acknowledgement of liability.

20. Insofar as the issue raised by the learned counsel for the

respondent that the notice was not served upon the registered office

of the respondent and the packet containing such notice was returned

unserved with the remark "left" is concerned, a perusal of the said

registered AD indicates that the Postman has made an endorsement

on the said envelope "Left company. Return to the sender". It is not

the case of the petitioner that the petitioner made any efforts

thereafter to serve the notice personally at the registered office of the

respondent. A perusal of the affidavit in reply indicates that it is the

case of the respondent that the registered office address of the

respondent continues even till today and that the respondent

company is carrying on business from the said address. No rejoinder

is filed to controvert this averment. In my view, Dr.Chandrachud is

right in his submission that the statutory notice not having been

served at the registered office of the respondent company, the

petition for winding up was not maintainable on that ground also.

21. Insofar as the last submission of the learned counsel for

the respondent that there are duplicate invoices is concerned, a

perusal of the documents annexed to the petition indicates that there

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is some duplication of invoices. The explanation of the learned

counsel for the petitioner on this issue that they are not duplicate

invoices but were issued for various works executed by the petitioner

for the respondent from time to time is not convincing. This disputed

fact cannot be gone into by this Court in the company petition

22. In my view, the defences raised by the respondent in the

affidavit in reply to which there is no rejoinder, are bonafide and are

not moonshine. The disputed questions cannot be gone into in this

winding up petition.

23. The petition is devoid of merits and is accordingly

dismissed. No order as to costs.

(R.D. DHANUKA, J.)