Ranjit Kaur vs Healthy Holdings Pvt. Limited
2003 Latest Caselaw 1226 Del

JUDGMENT

Mukul Mudgal, J.

1. This winding up petition is based on a notice dated 15th April, 1997 under Section 433 of the Companies Act claiming dues as per Clauses 5, 6 and 7 of the Memorandum of Understanding dated 18th February, 1994. The claim is founded on the liability of Rs. 50, 000/- per month arising as per clause 7 of the said MOU. Clauses 5, 6 and 7 of the said Memorandum relied upon by the learned counsel for the petitioner read as follows:

"5. That the amount of Rs. 1, 15, 000/- and Rs. 55, 000/- paid by Gobind Impex Private Limited and Healthy Holdings Private Limited respectively to the party of the First Part as imprest for the period 1st April, 1993 onwards shall stand adjusted against the bills for expenses and for use of assets and agricultural apparatus of the party of the First Part to be raised by the said party. Further the amounts due from Good Faith Construction Private Limited and Healthy Holdings Private Limited amount to Rs. 1, 59, 000/- and Rs. 54, 000/- respectively to party of First Part will stand adjusted against the amount due to Gobind Impex Private Limited and Healthy Holdings Private Limited as per Annexure I.

6. That as per settlement between the parties to this MOU and on the basis of the details of loans and advances and adjustments thereof referred to hereinabove and in Annexure I, the following amounts have become finally due from the party of the First Part :

i. Govind Impex Private Limited Rs. 17,35,469/-

ii.  Healthy Holdings Private Limited   Rs.    53,265/-
iii. Due from Nony Buildings Private Limited 
     to Mr. Mohan Maghotra    Rs. 11,00,554/-
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    Total   Rs. 28,89,288/-
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This liability the part of the First Part agrees to discharge on her behalf and on behalf of the Nony Builders Private Limited to be settled before 30th June, 1994. 
 

7.That the sum aggregating to Rs. 50, 000/- to be paid by Govind Impex Private Limited, Healthy Holdings Private Limited and Good Faith Construction Private Limited each month will be towards their use of assets and agricultural apparatus of the party of the First Part in respect of which she will raise monthly bills in each case."

2. Reliance has been placed on the above clauses in the Memorandum of Understanding and in particular clause 7 thereof which led to the notice under Section 433. The said notice was replied on 23rd May, 1997 on behalf of the respondent company M/s Healthy Holdings Private Limited where interalia the plea is taken that since no agricultural implements or assets were given, hence no occasion for payment thereof arise. The entire amount claimed was disputed accordingly and it was stated that there was diverse litigation pending in this Court including Suit Nos. 1250/94, 584/95 and CWP No. 4480/94 which demonstrate that the disputes between the parties are subject matter of a bona fide dispute.

3. Mr. Alag appearing on behalf of the petitioner has submitted that clause 7 clearly indicates the undisputed liability of the respondent of Rs. 50, 000/- per month which liability has not been discharged.

4. Mr. Aggarwal is appearing for the respondent and raised a preliminary objection that clauses 5 and 7 clearly indicate that the liability is that of three Companies namely Healthy Holdings Private Limited, Govind Impex Private Limited and Good Faith Construction Private Limited. He further submits that nowhere in the MOU it has been stated that the liability of each company is joint and several and accordingly winding up only against one of the Companies is not maintainable. Since there is prima facie merit in the plea, learned counsel for the petitioner was permitted to address the arguments on this plea.

5. In my view the winding up petition is not maintainable because (a) there is no direct admission on behalf of the respondent (b) MOU dated 18th February, 1994 does not prima facie reflect the entire transactions between the parties and (c) no details are forthcoming in the documents running in 252 pages which show what the agricultural assets and implements were which fetched income of Rs. 50, 000/- per month. Accordingly, it is very clear that there are certain questions which need explanation which cannot be determined under the winding up jurisdiction. Thus the petition is founded on seriously disputed questions of fact. There is also considerable merit in the plea of the learned counsel for the respondent that the winding up petition cannot be proceed for the entire dues of Rs. 50, 000/- per month claimed by the petitioner against only the respondent company when it is not stated in the said MOU as to what was liability of each of the three companies mentioned in clause 7. Thus there is merit in the pleas of there being disputed questions of fact and the preliminary plea of the respondent company about the non-maintainability of the winding up petition only against one of the three parties said to be liable as per clause 7. The winding up petition is accordingly dismissed.