Dcm Financial Services Ltd. vs Praxis Consulting And ...
2005 Latest Caselaw 626 Del

JUDGMENT

A.K. Sikri, J.

1. DCM Financial Services Ltd. has filed this petition under Section 439 read with Sections 433 and 434 of the Companies Act seeking winding up of Praxis Consulting and Information Services (P) Ltd., which is the respondent company (hereinafter referred to as the 'company'). Case of the petitioner is that on 14 December 1996--inter-corporate deposit of Rs. 16 lakhs was given by the petitioner to the company on its request by means of following cheques--

(i) Rs. 6 lakhs vide cheque bearing No. 813289

(ii) Rs. 7 lakhs vide cheque bearing No. 158595.

(iii) Rs. 3 lakhs by means of cheque No. 158596.

2. All these cheques were drawn on Punjab and Sind Bank. According to the petitioner, the company had agreed to pay this amount together with interest @ 30 per cent per annum and in case of default, penal interest @ 2.5 per cent per month, over and above the agreed rate of interest, was also payable. However, the respondent did not fulfill its commitment to remitting back the said loan along with interest in spite of repeated requests and reminders. As no heed was paid to these requests and personal visits as well the petitioner sent legal notice dated 17 February 1999. After the receipt of this legal notice, the company started making false and frivolous story that they had received only an empty envelop which contained no papers. A copy of the legal notice was, therefore, dispatched again. The company replied vide communication dated 15 May 1999 making out a false and frivolous case to the effect that monies received were on account of some consultancy services allegedly received by the petitioner company from the respondent for which bills were sent. According to the petitioner, no such consultancy services were obtained nor any bills received. Therefore, the petitioner claims that this defense is frivolous; the respondent is indebted to the petitioner in the sum of Rs. 31,46,701 (after including interest till 2.8.1999), it be deemed that the company is unable to pay the debt and, thus, order of winding-up be passed.

3. As is clear from the stand taken in reply to legal notice, case of the company is that there was no such inter-corporate deposit is placed on record. Likewise, no document is produced evidencing alleged rate of interest purportedly agreed between the parties. Version of the company is that three cheques in the sum of Rs. 16 lakhs were issued by the petitioner to the company towards payment of consultancy services rendered by the respondent at the petitioner's request and bill for the same was issued and money is also reflected in the books of accounts of the company as received on account of consultancy services.

3.1 According to the respondent, the petitioner has been getting such consultancy service since 1994-1995. The respondent had provided information, consultancy and other services on a regular basis to the petitioner company during the year 1994-1995, 1995-1996, 1996-1997 and 1997-1998 amounting to Rs. 59,910, Rs. 5,34,850, Rs. 5,61,050 and Rs. 15,02,000, respectively, and in all such cases, the respondent company used to charge its fee in advance and raise the invoices afterwards. The true copies of the certificate from the statutory Auditors of the respondent company substantiating these averments is annexed and marked as R-4. Likewise, in accordance with the regular practice, the company provided consultancy services to the petitioner for corporate advice on promotion, advertising and related matters to the petitioner company and received Rs. 15,00,000 in advance by the cheque numbers as mentioned above in para 8B and on completion of the assignment, raised its invoice number CC 5001 dated 1 May 1997 for Rs. 15,00,000 having been paid by the petitioner company and the respondent company also issued receipt No. R-CC 5001 dated 1 May 1997 for the said amount and that this material fact has been suppressed in this petition.

3.2 The respondent has, along with reply, filed office copy of invoice, receipt and certificate from the statutory Auditors and Annexure R-5, R-6 and R-7 respectively. It is also explained that there was no reason or occasion for the respondent to take such a loan inasmuch as the company, during the month of December 1996, when the first cheque No. 813289 for Rs. 5,00,000 was received, had surplus fund of Rs. 60,00,000 in fixed deposits with its bankers bearing interest @ 8.10 per cent. Further, the company during the month of March 1997 when the second and third payments vide cheque No. 015895 and 015896 amounting to Rs. 10,00,000 were received, had surplus fund of Rs. 49,00,000 in fixed deposits with its bankers bearing interest @ 8.10 per cent. In support of this plea, certificate from the statutory Auditors is filed as Annexure R-8. Therefore, according to the company, it had surplus funds and no prudent person would have taken loan, that too at an exorbitant interest bearing rate of 30 per cent per annum with penal clause of 25 per cent per month thereby attracting the interest at 60 per cent per annum. It is also stated that the petitioner has taken varying and conflicting stands. Although in the petition, it is stated that loan of Rs. 15 lakhs was given, the details of three cheques make it Rs. 16 lakhs and in statutory notice figure of Rs. 13 lakhs is mentioned. Thus, according to the respondent, the petition is frivolous, misconceived and misleading, which would also be clear from the following discrepancies:

(a) The reason for advancing the funds has been fabricated by the petitioner company because the company does not deal in shares/securities.

(b)    The amount allegedly advanced by the petitioner company is Rs. 13 lakhs, Rs. 15 lakhs and Rs. 16 lakhs at different places.
 

(c)   The alleged rate of interest payable on the ICDs is shown as 30 per cent per annum in petition by 25 per cent in the statement of accounts annexed with the petition.
 

(d)   The amount of first cheque is shown as Rs. 3 lakhs, Rs. 5 laksh and Rs. 6 lakhs at different places.
 

(e)   The drawee of the first cheque is shown as Punjab and Sind Bank while in fact it is Canara Bank.
 

(f)   The tenor of the alleged first ICD is shown as 131 days at one place and 181 days at another place and of alleged second ICD as 91 days at one place and 90 days at another place.
 

(g)   The petitioner without providing any evidence, alleges that the company is in financial difficulties disposing of its assets and does not have enough finances to repay the debts.
 

4. Learned counsel for the petitioner, in support of the petition, submitted that receipt of three cheques was not disputed by the respondent. The defense, however, raised was that the payment was towards consultancy services. But in reply to the statutory notice--no details of such an agreement were provided. Likewise, no details of bills were given. According to the learned counsel, therefore, story of providing consultancy services was cooked up and later on documents, i.e., consultancy agreement and bills, were fabricated to fill the gaps. Further, even the invoice dated 1 May 1997 (Annexure R-5) produced now would show that it is not on the letterhead of the company. Further, although it is mentioned in the said invoice that the same was for consultancy fee for corporate advice on promotion, advertising and related matters as per proposal of 22 November 1996, it did not mention that these services were allegedly for public issue of the petitioner, which ground is taken now.

5. It may be mentioned that the respondent has filed original of the consultancy services agreement, which contains stamp of the petitioner-company and signatures of some person on the said stamp. Scope of consultancy services is stated therein. As per this agreement, a lump sum fee of Rs. 15 laksh is to be paid and the entire fee is payable in advance. Rs. 15 lakhs was to be paid along with the award of the assignment and balance Rs. 10 lakhs at least 15 days prior to the opening of subscription of the petitioner's right issue. Although this agreement is denied, it is not in dispute that right issue was opened by the petitioner company at the relevant time. The petitioner has also not disputed that such consultancy services were being provided by the respondent to the petitioner earlier. The respondent has shown the receipt of this amount towards consultancy services in its books of accounts and this aspect is duly certified by the statutory Auditors. As against this, petitioner has not produced any document on record to show that the amount in question represented loan. If the amount was given as loan which was to carry interest @ 30 per cent per annum and on the top of it there was some clause for penal interest as well, that too @ 2.5 per cent per month in the case of default, there should have been some agreement between the parties evidencing this transaction on such terms. It is intriguing that Rs. 15 lakhs were given by the petitioner to the company without executing any document and again parties agreed on payment of interest at such a high rate but did not reduce into writing this material and important term. Interestingly, on earlier occasion, it is the petitioner who had taken inter-corporate deposit from the company. The respondent has produced on record a letter dated 2 May 1995 (Annexure R-3) as per which the petitioner had agreed to take inter-corporate deposit of Rs. 50 lakhs for which the petitioner had executed the following documents:

(i) Promissory Note.

(ii) Receipt of Rs. 50 lakhs.

(iii) Board resolution.

(iv) Signature verification.

6. Thus, earlier it is the petitioner who look inter-corporate deposit of Rs. 50 lakhs on the respondent. Not only this, requisite documents were executed between the parties in this behalf and receipt of Rs. 50 lakhs executed by the petitioner categorically mentioned that this inter-corporate deposit was for a period of 90 days and was to carry interest @ 24 per cent per annum. Same stipulation was mentioned in demand promissory note as well. Why petitioner would not get the same kind of documents executed from the company when it chose to give this inter-corporate deposit to the respondent, is puzzling. It is, thus, clear that averments made in the petition are not supported by any relevant documents and are disputed by the respondent. Further, the documents, which are placed by the respondent giving its version of the transaction, would clearly demonstrate that dispute raised by the respondent is bona fide.

7. The situation in this case is somewhat same to the circumstances noted in the case of Ambey Flour Mills (P) Ltd. v. Vimal Chand Jain (1990) 1 Comp LJ 289 (Del): (1991) 70 Comp Case 561 (Del). That was a case where the respondent advanced to the appellant- company four sums as loans, on various dates between January 1980 and August 1980. He filed a petition under Section 433(e) of the Companies Act, 1956, for winding up of the company on the ground that the company had failed to repay a sum of Rs. 35,000 being the last of the four sums advanced, and interest thereon. The company disputed the fact that the loan of Rs. 35,000 had been advanced to it by the respondent. However, on the basis of a certificate issued by managing director of the company in 1984, and an entry in the respondent's books of account, the Company Judge admitted the petition and directed advertisement. On appeal by the company, the Division Bench, infer alia, found that on the facts, (i) that no prima facie case whatsoever had been made out by the respondent for the admission of the petition for winding up the appellant company as it had not been shown by the respondent that the appellant company was unable to pay any debt owing from it as contemplated by Section 433(e) of the Act; (ii) that the sole case of the respondent for seeking winding up of the company was that the appellant company had neglected to repay the sum of Rs. 35,000 allegedly advanced as a loan to the appellant. The respondent had admittedly advanced the other three sums of loan during the period from 24 January 1980, to 24 May 1980 by cheques. The sum of Rs. 35,000 in question was admittedly not paid by cheque. The respondent had taken contradictory stands as regards the mode of payment of the sum of Rs. 35,000. No effort had been made by the respondent to summon the record of the concerned bank or file any certificate from the concerned bank to show that any pay order was issued by the respondent in favor of the appellant company. Under these circumstances, the Division Bench allowed the appeal and observed that the machinery of winding-up is not to be allowed to be utilised simply as means for Realizing debts due from a company. A winding up petition is not the legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. If debt is not disputed on some substantial grounds, the court may decide it on the petition and make an order of winding-up of the company. However, if the debt is bona fide disputed, there cannot be 'neglect to pay' within the meaning of Section 434(1)(a) of the Companies Act, 1956. If there is no neglect to pay, the deeming provision does not come into play and the ground of winding-up, namely, the company is unable to pay its debts, is not substantial. A petition presented ostensibly for a winding-up order but really to exercise pressure on the company has to be dismissed.

8. The other case to which reference may usefully be made, is the judgment of Punjab and Haryana High Court in the case of United Construction Company v. Piccadily Sugar and Allied Industries Ltd. (2001) 5 Comp LJ 250 (P&H): (2000) 101 Comp Case 33 (P&H). That was a case where petition for winding up was filed on the ground that the respondent company failed to clear the balance payment for services rendered by the petitioner company. Contention of the respondent company was that the petitioner did not complete the project thereby causing loss to the respondent. The court, from the pleadings, found that the parties were not ad idem in regard to any factum right from the execution of the alleged agreement till its completion. According to the petitioner, he had completed the work and demanded money, while according to the respondent, the petitioner had abandoned the work causing great loss and damage to the respondent-company. There were no written documents placed on record or agreements, which could throw light on this controversy. Dismissing the petition the court observed as under:

"At this stage of admission of the petition, the court is concerned to see whether the respondent-company has been unable to pay its debts. The amount claimed must be one which is legally due and recoverable debt. The amount claimed must be one which is legally due and recoverable debt. The debt must be payable prima facie. The onus to a great extent is placed upon the petitioner to satisfy the court prima facie. In this regard, to my mind the petitioner has not been able to discharge its primary onus to show that the above debt is rightly due to the petitioner much less that it was an admitted liability. The court would refuse to admit a petition where there is a bona fide dispute raised by the respondent-company.... Once the stand of the respondent-company prima facie is bona fide and is of substance then it would be difficult for the court to direct admission of such a petition. Improper motive on the part of the petitioner cannot be ruled out and the stand of motive on the part of the petitioner cannot be rejected for want of bona fides or substance, (refer to Madhusudan Gordhandas and Co. v. Madhu Woollen Industries (P) Ltd., . If must be noticed that the petition as framed is vague, indefinite and lacks material particulars. It is the obligation of a petitioner to approach the court with a definite case and to place on record all the documents which he relies upon for the purposes of proving his case. Absence of either of them would have to be construed to the disadvantage of the petitioner. The provisions of Sections 433 and 434 of the Companies Act must be construed not so lightly as to divert the very purpose underlying these provisions. The company would not be unable to pay its debts if it fails to pay the debt alleged to be due which itself is not founded on any cogent pleadings and is not supported by any documents".

9. It is, therefore, not possible for me to entertain such a petition for winding-up and invoke my discretionary jurisdiction. The petition is accordingly dismissed. However, there shall be no orders as to costs.