Bombay High Court
Ashok C Babu vs M/S. Parekh Aluminex Ltd. (Cin : ... on 5 May, 2017
Bench: R.D. Dhanuka
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CP496.14
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMPANY PETITION NO. 496 OF 2014
Janak Herkishen Vaswani )
residing at Vaswani Garden, Ground Floor, )
Behind Atur Terraces, 25, Sobani Road, )
Cuffe Parade, Mumbai - 400 005 ) ..... Petitioner
Versus
M/s.Parekh Aluminex Ltd., )
having their registered office at )
601, Auto Commerce Centrekennedy Bridge )
Nana Chowk, Grant Road, Mumbai - 400 007 )
CIN No.L2703MH1994PLC080732 ) ..... Respondent
ALONGWITH
CIVIL APPLICATION (L) NO. 890 OF 2015
IN
COMPANY PETITION NO. 496 OF 2014
Ashok C. Babu, )
Adult, Indian Inhabitant, )
Navinbhai Patel Chawl, Mayawanshi Falia, )
Dadra Nagar Haveli, Silvassa ) ..... Applicant
IN THE MATTER OF
Mr.Janak Herkishen Vaswani )
residing at Vaswani Garden, Ground Floor, )
Behind Atur Terraces, 25, Sobani Road, )
Cuffe Parade, Mumbai - 400 005 ) ..... Petitioner
VERSUS
Parekh Aluminex Ltd. )
a Company incorporated under the )
Companies Act, 1956, having its registered )
office at 601, Auto Commerce House, )
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CP496.14
Kennedy Bridge, Nana Chowk, Grant Road, )
Mumbai - 400 007 )
and also at )
G-11, Everest Building, 8th Floor, Tardeo, )
Mumbai Central, Mumbai - 400 034 )
CIN No.L2703MH1994PLC080732 ) ..... Respondent
AND
Ashok C. Babu, )
Adult, Indian Inhabitant, )
Navinbhai Patel Chawl, Mayawanshi Falia, )
Dadra Nagar Haveli, Silvassa ) ..... Applicant
ALONGWITH
COMPANY PETITION NO. 497 OF 2014
Mrs.Renuka Herkishen Vaswani )
residing at Vaswani Garden, Ground Floor, )
Behind Atur Terraces, 25, Sobani Road, )
Cuffe Parade, Mumbai - 400 005 ) ..... Petitioner
Versus
M/s.Parekh Aluminex Ltd., )
having their registered office at )
601, Auto Commerce Centrekennedy Bridge )
Nana Chowk, Grant Road, Mumbai - 400 007 )
CIN No.L2703MH1994PLC080732 ) ..... Respondent
ALONGWITH
COMPANY APPLICATION (L) NO. 886 OF 2015
IN
COMPANY PETITION NO. 497 OF 2014
Ashok C. Babu, )
Adult, Indian Inhabitant, )
Navinbhai Patel Chawl, Mayawanshi Falia, )
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CP496.14
Dadra Nagar Haveli, Silvassa ) ..... Applicant
IN THE MATTER OF
Mrs.Renuka Herkishen Vaswani )
residing at Vaswani Garden, Ground Floor, )
Behind Atur Terraces, 25, Sobani Road, )
Cuffe Parade, Mumbai - 400 005 ) ..... Petitioner
VERSUS
Parekh Aluminex Ltd. )
a Company incorporated under the )
Companies Act, 1956, having its registered )
office at 601, Auto Commerce House, )
Kennedy Bridge, Nana Chowk, Grant Road, )
Mumbai - 400 007 )
and also at )
G-11, Everest Building, 8th Floor, Tardeo, )
Mumbai Central, Mumbai - 400 034 )
CIN No.L2703MH1994PLC080732 ) ..... Respondent
AND
Ashok C. Babu, )
Adult, Indian Inhabitant, )
Navinbhai Patel Chawl, Mayawanshi Falia, )
Dadra Nagar Haveli, Silvassa ) ..... Applicant
ALONGWITH
COMPANY PETITION NO. 498 OF 2014
Mr.Ravi Herkishen Vaswani )
residing at Vaswani Garden, Ground Floor, )
Behind Atur Terraces, 25, Sobani Road, )
Cuffe Parade, Mumbai - 400 005 ) ..... Petitioner
Versus
M/s.Parekh Aluminex Ltd., )
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CP496.14
having their registered office at )
601, Auto Commerce Centrekennedy Bridge )
Nana Chowk, Grant Road, Mumbai - 400 007 )
CIN No.L2703MH1994PLC080732 ) ..... Respondent
ALONGWITH
CIVIL APPLICATION (L) NO. 885 OF 2015
IN
COMPANY PETITION NO. 498 OF 2014
Ashok C. Babu, )
Adult, Indian Inhabitant, )
Navinbhai Patel Chawl, Mayawanshi Falia, )
Dadra Nagar Haveli, Silvassa ) ..... Applicant
IN THE MATTER OF
Mr.Ravi Herkishen Vaswani )
residing at Vaswani Garden, Ground Floor, )
Behind Atur Terraces, 25, Sobani Road, )
Cuffe Parade, Mumbai - 400 005 ) ..... Petitioner
VERSUS
Parekh Aluminex Ltd. )
a Company incorporated under the )
Companies Act, 1956, having its registered )
office at 601, Auto Commerce House, )
Kennedy Bridge, Nana Chowk, Grant Road, )
Mumbai - 400 007 )
and also at )
G-11, Everest Building, 8th Floor, Tardeo, )
Mumbai Central, Mumbai - 400 034 )
CIN No.L2703MH1994PLC080732 ) ..... Respondent
AND
Ashok C. Babu, )
Adult, Indian Inhabitant, )
Navinbhai Patel Chawl, Mayawanshi Falia, )
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Dadra Nagar Haveli, Silvassa ) ..... Applicant
Mr.Sharan Jagtiani, a/w. Mr.Nirman Sharma, a/w. Ms.Pinky Patel, i/b.
M/s.Desai & Diwanji for the Petitioner.
Mr.Simil Purohit, a/w. Mr.Punit Damodar, Ms.Nikita Vardhan, i/b.
Kanga & Co. for the Respondent.
Ms.Ankita Singhania, a/w. Mr.Aamir Ali Shaikh, Mr.Punit Kachalia,
i/b.I.V.Merchant & Co. for the Intervenor/Applicants in
CAL/890/2015, CAL/886/2015, CAL/885/2015.
CORAM : R.D. DHANUKA, J.
RESERVED ON : 26th APRIL, 2017
PRONOUNCED ON : 5th MAY, 2017
JUDGMENT :
The petitioner in Company Petition No.496 of 2014,
Company Petition No.497 of 2014 and Company Petition No.498 of
2014 have prayed for winding up of the respondent on the ground that
the respondent is unable to pay its debts. Company Application
(L)No.890 of 2015, Company Application (L)No.886 of 2015 and
Company Application (L)No.885 of 2015 are filed by the applicants
inter alia praying for impleadment as party respondent in the aforesaid
company petitions respectively.
2. The facts 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 :-
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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 16 th
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 post-
dated cheque with his bankers viz. Citi Bank and the said cheque was
dishonoured with a remark 'Exceeds Arrangement'. The petitioner has
already filed a separate criminal proceedings against the respondent
and the same are pending.
6. The petitioner issued a notice through his advocates' letter
dated 3rd October,2013 and called upon the respondent to clear the
outstanding amount with interest. There was no payment made by the
respondent in response to the said notice.
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7. The petitioner thereafter through its advocates' letter
issued a statutory notice dated 22nd October,2013 under sections 433
and 434 of the Companies Act, 1956 calling upon the respondent to
pay a sum of Rs.50,00,000/- with interest. The said notice was served
at the registered office of the respondent. The respondent replied to the
said notice in the month of October 2013 (Ex.D to the petition) and
vaguely denied the claims. It was conveyed to the petitioner that the
respondent was facing a temporary liquidity crunch and was therefore
unable to make certain repayment obligations towards its lenders. The
company was most likely to overcome its present liquidity crunch and
meet its payment obligations in the near future. The respondent
informed that the respondent had approached the Corporate Debt
Restructuring (CDR) Cell of the Reserve Bank of India to restructure
its debts and improve the overall financial help of the respondent.
8. In the said reply, the respondent alleged that Mr.Amitabh
Parekh, Chairman and Managing Director of the respondent had issued
cheques to various parties with an express understanding not to deposit
the same without his consent and permission to which the petitioner
had agreed at the time of advancing the alleged loan. It was alleged
that the subject cheques were comfort cheques and were never meant
for repayment of alleged loan. It was contended that the subject
cheques were without any mandate as the drawer of the cheque had
expired before presenting the cheques for payment in the bank.
According to the petitioner in the Company Petition No.496 of 2014,
the respondent is liable to pay a sum of Rs.54,63,635/- with further
interest thereon from 20th December,2013 at the rate of 18% per annum
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till payment.
9. Insofar as Company Petition No.497 of 2014 is concerned,
the petitioner had granted a loan in the respondent to the sum of
Rs.1,00,00,000/- by two cheques dated 19th March,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 5 th
December,2014. Mr.Jagtiani placed reliance on the order passed by
this court on 24th February,2014 in Summons for Judgment No.21 of
2013 in Summary Suit No.203 of 2013 filed by M/s.Ashok
Commercial Enterprises & Anr. against the respondent herein inter
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alia praying for a recovery of sum of Rs.68,37,96,666/-. It is
submitted by the learned counsel for the petitioner that the defence
raised by the respondent in the affidavit in reply to these company
petitions were also raised in the reply to the Summons for Judgment
before this court in the said summary suit filed by M/s.Ashok
Commercial Enterprises & Anr. against the respondent herein. He
submits that this court has rejected the plea raised by the respondent
herein in the said order dated 24th February,2014 that the transaction
between the parties was a money lending transaction and was hit by
section 10 of the Bombay Money Lenders Act, 1946. The respondent
herein had also contended in the said proceedings that since the said
summary suit was filed for recovery of a loan amount given by the
plaintiff which was an act of money lending without holding of a valid
licence and thus the same was barred by the provisions of Bombay
Money Lenders Act, 1946.
12. It is submitted that this court considered the said issue in
detail in the said judgment and after adverting to the judgments of this
court in cases of (1) M/s.Rushabh Precision Bearings Ltd. vs.
M/s.Marine Container Services (India) Pvt. Ltd., 1993(3)
Bom.C.R.760, (2) Bharati Surendra Khandhar vs. Deepak M.Shah
in Summons for Judgment No.727 of 1998 decided on 8th
October,2001, (3) Jatin Jashwantrai Bhagat vs. Dayaram Waghji
Thakar in Summons for Judgment No.309 of 2006 decided on 4th
October,2006, (4)Sha Damji Deraj vs. Megraj Bhikumchand & Ors.,
1958 Bombay Law Reporter Vol.LX 1366 and (5) Khayati Realtors
Pvt. Ltd. vs.M/s.Zenal Construction Pvt.Ltd. in Company Petition
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No.243 of 2012 decided on 29th August,2013 has culled the principles
laid down in those judgments.
13. It is submitted that this court has already rejected the said
plea on the ground that the loan advanced against the Negotiable
Instrument Act is excepted from the application of the Bombay Money
Lenders Act, 1946. Such a loan is not only a valid consideration of the
negotiable instrument, but would itself be recoverable even if the
creditors were not to sue on the negotiable instrument. It is held that
had the suit been a suit for recovery of a loan, the defences raised by
the defendant under 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.
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(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 handed over to the
petitioner only as a collateral security for the repayment of the loan is
concerned, it is submitted that a similar defence raised by the
respondent in the said summary suit also has been rejected by this
court by holding that the said defence was merely illusory. It is held by
this court that if a cheque is issued as a security to repay the amount, it
would necessarily mean that in the event of non-payment of the
amount secured by the cheque, the cheque can be deposited and would
be honoured. This court held that the said defence can only be termed
as bogus.
16. Insofar as the defence raised by the respondent that since
the signatory of the cheque had expired before presentation of the
cheque by the petitioner and thus there was no valid presentation for
payment is concerned, similar defence was also raised by the
respondent in the said summary suit. This court considered the said
defence in the said order dated 24th February,2014 and rejected the said
defence on the ground that the signatory of the cheque was the
managing director of the defendant company and his death had nothing
to do with the validity of the presentment of the cheques for payment.
It is submitted by the learned counsel that by the said order dated 24th
February,2014, the respondent herein was granted leave to defend the
said summary suit on the condition of deposit of Rs.67 crores in this
court within a period of eight weeks from the date of the said order.
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17. Learned counsel for the petitioner also invited my
attention to the order passed by the Division Bench of this court on 20 th
November,2014 in Appeal (L) No.252 of 2014 arising out of the said
order dated 24th February,2014 in Summons for Judgment No.21 of
2013 which was filed by the respondent herein. It is submitted by the
learned counsel that the Division Bench of this court has rejected each
and every submission made by the respondent herein and has
dismissed the said appeal. It is submitted that the defence raised by the
respondent in affidavit in reply to these petitions are already
considered and rejected by the learned Single Judge of this court and
also by the Division Bench of this court in the appeal arising out of the
said order. The principles laid down by this Court are squarely
applicable to the facts of this case. The respondent herein was a party
to the said proceedings. Special Leave Petition 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.
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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 maintainable. He also
invited my attention to the affidavit of service filed by the petitioner on
22nd August,2014 and submits that event the said affidavit of service
would clearly indicates that the papers and proceedings and the notice
were not served at the registered office address of the respondent.
21. Insofar as plea under the provisions of Bombay Money
Lenders Act, 1946 is concerned, Mr.Purohit, learned counsel appearing
for the respondent placed reliance on the judgment of this court in case
of M/s.Rushabh Precision Bearings Ltd. vs. M/s.Marine Container
Services (India) Pvt.Ltd., 1993(3) Bom.C.R.760 and in particular
paragraphs 1, 10 to 13 and submits that since the petitioner had not
obtained money lending licence before grant of any loan to the
respondent, the debt of the petitioner if any, was not legally
recoverable and thus the petition for winding up under section 433(e)
read with section 434(1)(a) of the Companies Act, 1956 itself would
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not be maintainable. He also invited my attention to the averments
made in paragraph (7) of the company petition and would submit that it
is the case of the petitioner himself that he had agreed to give loan of
Rs.50 lacs to the respondent. He submits that the company petition is
not filed based on the dishonoured cheque but has been based on the
loan advanced to the respondent.
22. Learned counsel also invited my attention to the demand
notice issued by the petitioner on 22 nd October,2013 in support of his
submission that the said statutory notice was also based on the loan
advanced by the petitioner to the respondent and not based on the
dishonoured cheque. He submits that the petitioner has not claimed
interest at the rate of 18% per annum under the provisions of
Negotiable Instrument Act. It is submitted that the principles laid
down by this court in case of M/s.Rushabh Precision Bearings Ltd.
(supra) would squarely apply to the facts of this case. This company
petition would not be maintainable since the debt itself was not legally
recoverable. He submits that the petitioner has not expressed
anywhere in the company petition as to why the petitioner could not be
considered as a money lender within the meaning of money lenders
under the provisions of Bombay Money Lenders Act, 1946. He
submits that the order passed by the S.C.Gupte, J. may be a good law
but in the facts of that case.
23. Mr.Jagtiani, learned 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
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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 16 th
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 24 th 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 judgment this court has
categorically held that there was no material on record that the
petitioner was carrying on business of money lending. There is no
regularity or continuity or no notion of system of repetition. It was not
the primary object of the Company to carry on business of money
lending and thus the said transaction would be excluded from the
definition of money lending by virtue of section 2(g)(f). He submits
that in this case also, it is not the case of the respondent that there were
any continuity or repeated loan transactions between the petitioner and
the respondent or that the petitioner was regularly carrying on business
of money lending. He submits that in all three petitions, three separate
individuals have granted loan to the respondent and thus in no
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circumstances, the provisions of Bombay Money Lenders Act could be
attracted to the facts of this case.
25. Insofar as the issue raised by the respondent across the bar
that the statutory notice or the papers and proceedings of the company
petition was not served at the registered office of the respondent is
concerned, learned counsel appearing for the petitioner invited my
attention to the averments made in paragraphs 10 to 14 of the company
petition. He submits that no such plea is raised by the respondent in
the affidavit in reply. It is submitted that even in the reply to the
statutory notice dated 22nd October,2013 issued by the petitioner, the
respondent never raised an issue about service of the statutory notice at
the registered office address. The petitioner had issued two statutory
notices one at the address G-11, Everest Building, 5th Floor, Tardeo,
Mumbai - 400 034 and another at 601, Auto Commerce
Centrekennedy Bridge, Nana Chowk, Grant Road, Mumbai - 400 036.
The respondent had responded to the statutory notice issued by the
petitioner on 3rd October,2013 vide reply dated 21st October,2013.
26. Ms. Singhania, learned counsel for the intervenor adopted
the arguments advanced by Mr.Purohit, learned counsel for the
respondent and submits that the workers of the respondent would be
affected by any orders if passed by this court against the respondent
and are entitled to be heard and oppose the admission of the company
petition. She submits that this court has already permitted the
applicant to intervene in Company Petition No.136 of 2014 filed by
M/s.Ashok Commercial Enterprises.
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REASONS AND CONCLUSIONS
27. Insofar 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 also dealt with this issue in detail. The Division
Bench of this court held that as the advances were made by the plaintiff
on the basis of the negotiable instrument as defined in the Negotiable
Instrument Act, 1881, the loan did not fall within the purview of clause
(f) of section 2(g) of the Bombay Money Lenders Act, 1946. This
Court held that the cheques were forwarded by respondent herein to the
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petitioner therein after the loans were advanced makes no difference.
The amounts were advanced by the petitioner therein to the respondent
herein and the cheque and bill of exchange were issued by the
respondent herein to the petitioner therein as a part of one composite
agreement and was entered into at the same time. In this case, the
petitioner had given loan on 19th March,2012 by a cheque. There was
no writing executed between the parties while the petitioner had given
loan to the respondent. On 16 th December,2012, the respondent
acknowledged the receipt of the said loan only at the rate of 12% per
annum and assured to make repayment of the loan and issued a cheque
of Rs.50 lacs dated 16th March,2013 towards repayment. The said
cheque was admittedly dishonoured.
29. In my view, the issue raised by the respondent is thus no
longer res integra and is already concluded in the said order dated 24 th
February,2014 passed by this court to which the respondent herein was
a party and by an order dated 20th November,2014 passed by the
Division Bench of this court in the appeal filed by the respondent
herein which is dismissed. The principles laid down by this court in
the said two judgments are squarely applicable to the facts of this case.
I am respectfully bound by the said judgment.
30. Section 10 of the Bombay Money Lenders Act, 1946 reads
thus :-
"10. (1) No court shall pass a decree in favour of a
money-lender in any suit to which this Act applies
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[including such suit pending in the court before the
commencement of the Bombay Money-lenders
(Amendment) Act, 1975] unless the court is
satisfied that at the time when the loan or any part
thereof, to which the
suit relates was advanced, the money-lender held a
valid licence, and if the court is satisfied that the
money-lender did not hold a valid licence, it shall
dismiss the suit."
(2) Nothing in this section shall affect -
(a) suits in respect of loans advanced by a money-
lender before the date on which this Act 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 money-
lender."
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
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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 has not placed any such material on
record before this court. In my view, the said defence thus raised by
the respondent is totally frivolous and moonshine.
32. Insofar as other pleas raised by the respondent in the
affidavit in reply such as (i) the cheques were given as a collateral
security for repayment of the loan, (ii) there was no valid presentment
of the cheque in view of the signatory of the said cheque having
expired before such presentment are concerned, similar pleas are
already rejected by this court in the said order dated 24 th February,2014
passed by the learned Single Judge and by the order dated 20 th
November,2014 passed by the Division Bench of this court to which
the respondent herein was a party.
33. Insofar as the plea of the respondent that there was a CDR
scheme is concerned, it is not in dispute that the said CDR scheme has
already failed.
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34. Insofar as submission of the learned counsel for the
respondent that the statutory notice or the papers and proceedings were
not served at the registered office address of the respondent is
concerned, a perusal of the record indicates that no such plea has raised
by the respondent in the affidavit in reply. Be that as it may, the fact
remains that the petitioner has issued two statutory notices, one at the
registered office address of the respondent and one at the
administrative office address of the respondent. The respondent has
already responded to the one of such statutory notice. Even in the said
reply, the respondent did not raise any such issue. It is not the case of
the respondent that before filing the company petition, the respondent
has notified any other registered office address of the respondent to the
Registrar of Companies. In my view no such plea thus can be raised by
the respondent and that also across the bar. Even otherwise, there is no
merit in this submission of the learned counsel as the same is contrary
to the admitted facts on record.
35. This court has already delivered a detailed judgment on
11th April,2017 in Company Petition No.136 of 2014 filed by
M/s.Ashok Commercial Enterprises against the respondent herein and
has rejected several issues raised by the respondent. This court has
also considered an admitted fact that the CDR scheme has already
failed. The respondent had several opportunities for revival if any, in
last three years but the respondent has failed 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
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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
before BIFR for revival, could not succeed. This court has held that
there are not even remotest possibility of revival of the respondent
company. Before the remaining assets of the respondent are friterred
away, appointment of the Official Liquidator as Provisional Liquidator
is absolutely warranted. This court placed reliance on the judgment
delivered on 19th March,2010 in case of Sublime Agro Limited vs.
Indage Vinters Limited in Company Petition No.960 of 2009 and has
held that CDR scheme is admittedly a voluntary scheme and not
binding on the unsecured creditors of the company. It is held that the
provisions pertaining to winding up proceedings under the Companies
Act are more particularly meant for protecting the interest of the
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unsecured creditors of the company who are most affected lot when a
company becomes commercially insolvent. The secured creditors of
the company can always pursue their claim by keeping themselves out
of the winding up proceedings. By the said judgment this court
admitted the said Company Petition No.136 of 2014 and has also
appointed the Official Liquidator as the provisional liquidator. At the
request of the learned counsel for the respondent, this court has
directed not to advertise the petition for a period of two weeks from the
date of the said order. In my view the said judgment delivered by this
court in Company Petition No.136 of 2014 applies to the facts of this
case. I am respectfully bound by the said judgment.
37. In my prima facie view, the respondent is heavily indebted
and is unable to pay its debts.
38. I, therefore, pass the following order :-
(a) Applicants in Company Application
(L)No.890 of 2015, Company Application
(L)No.886 of 2015 and Company Application
(L)No.885 of 2015 are allowed to intervene in the
Company Petition No.496 of 2014, Company
Petition No.497 of 2014 and Company Petition
No.498 of 2014 respectively. Company
applications are disposed of in the aforesaid terms.
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(b) Company Petition No.496 of 2014,
Company Petition No.497 of 2014 and Company
Petition No.498 of 2014 are admitted and are
directed to be heard along with Company Petition
No.136 of 2014.
(c) If the petitioner in Company Petition No.136
of 2014 has not advertised the petition, the
petitioner in Company Petition No.496 of 2014
shall advertise the petitions in two local
newspapers, namely (i) Free Press Journal (in
English) and 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
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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 liberty to
apply for appointment of the provisional liquidator
as Official Liquidator in case the order dated 11 th
April,2017 in Company Petition No.136 of 2014
appointing the Official Liquidator as provisional
liquidator of the respondent is set aside and/or
vacated.
(R.D.DHANUKA, J.)
At the request of Mr.Purohit, learned counsel appearing for the
respondent, which is vehemently opposed by Mr.Jagtiani, learned
counsel appearing for the petitioner the aforesaid three petitions shall
not be advertised by the petitioner for the period of six weeks from
today.
(R.D.DHANUKA, J.)
