Vishnu Manglani & Anr vs M/S Tuff Energy P. Ltd.
2013 Latest Caselaw 3410 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

                                             Reserved on: 30th July, 2013
%                                      Date of Decision: 2nd August, 2013

+      CO.PET. 588/2012
       VISHNU MANGLANI & ANR                  ..... Petitioner
                   Through: Mr Ankit Jain, Advocate.

                          versus

     M/S TUFF ENERGY P. LTD.                ..... Respondent

Through: Mr P V Dinesh and Mr Jaimon Andrews, Advocates.

CORAM:

MR. JUSTICE R.V. EASWAR

R.V. EASWAR, J.:

Co.Appl.2442/2012 (for exemption)

Allowed subject to all just exceptions.

CO.PET. 588/2012 & Co.Appls.2441/2012

This is a petition filed under Section 433(e) and 433(f) read with

Section 434(1)(a) of the Companies Act, 1956 seeking winding up of

the respondent-company.

2. The respondent-company had taken the premises being Apartment

No.301, The Aralias, DLF, Phase-V, Gurgaon, admeasuring 6833 sq.ft.

for rent under a lease agreement dated 29th August, 2011. The agreed

rent was Rs.3,25,000/- per month exclusive of maintenance charges

payable to M/s DLF Home Services Pvt. Ltd. and electricity charges.

The maintenance charges were to be paid by the respondent-company

directly to the maintenance agency.

3. The premises were occupied from 1st September, 2011 and prior

inspection thereof had been taken by the respondent-company on 29th

August, 2011.

4. The respondent-company paid the monthly rent for seven months

but thereafter did not pay. During the period from September, 2011 to

October, 2012, the respondent company paid an amount of

Rs.27,29,500/- as against the amount of Rs.47,74,000/- being the rent

and maintenance charges for 14 months calculated at Rs.3,41,000/- per

month (inclusive of electricity charges of `16,000/- p.m). Thus an

amount of Rs.20,44,500/- was due and payable by the respondent-

company. This was exclusive of the electricity charges.

5. A notice under Section 433 read with Section 434 of the Act was

sent by the petitioner in the aforesaid circumstances calling upon the

respondent to pay the arrears within 21 days. The notice was duly

served on the respondent, which is not disputed. No reply was received

to the notice from the respondent.

6. In the aforesaid circumstances, the petitioner filed the present

winding up petition. On 15th January, 2013 an order was passed by this

Court directing the respondent to clear the arrears by the next date of

hearing and also to surrender the possession of the premises to the

petitioners. When the matter was taken up on 28th February, 2013 it was

noticed by the Court that the premises had not been handed over to the

petitioner; accordingly a direction was issued, which was accepted by

the respondent, that the possession will be handed over to the petitioner

on 6th March, 2013 on 11 A.M. This direction was complied with. This

Court also noticed that Mr.Vineet Yadav, Director of the respondent-

company was defying the orders of this Court repeatedly. Accordingly

on 9th May, 2013 he was directed to be present in Court. The matter was

directed to be relisted on 30th July, 2013.

7. The learned counsel for the petitioner drew my attention to

paragraph 9 of the counter where it was stated that the company was not

doing any business and the expenses were being met with the personal

funds of the Directors. The submission was that this itself shows that

the company is commercially insolvent. In paragraph 12 of the counter,

to which also my attention was drawn, it was stated that the total rent

paid by the respondent was Rs.27,29,500/- which is at the rate of

Rs.3,25,000/- per month. It was submitted that the respondent at no

point of time disputed the fact that the rent payable by it was

Rs.3,25,000/- per month. It is further contended that the averment in

paragraph 6 of the petition that the agreed rent was Rs.3,25,000/- per

month has not been specifically denied or contested by the respondent.

My attention was also drawn to the legal notice and the reply thereto in

which no dispute was raised about the rent payable and further no

specific promise or assurance allegedly made by the petitioner in the

matter of providing services was pointed out. It is submitted that the

attempt of the respondent is to raise a dispute, which does not exist,

regarding the repairs and maintenance to be carried out in the premises

which is mere moonshine. It is accordingly prayed that the company

petition be admitted and the respondent-company be ordered to be

wound up.

8. The argument put forward on behalf of the respondent-company

is that the lease deed was not registered and, therefore, it cannot be

looked into. It is further submitted that the question regarding the lack

of proper repair and maintenance of the premises is one of evidence and

to be proved and having regard to the allegations of the respondent-

company regarding the poor maintenance of the premises, it would be

unfair to force the petitioner to pay a rent of Rs.3,25,000/- per month. It

is submitted that in any case these are matters of evidence to be proved

in proper proceedings and the winding up proceedings are not the

answer.

9. In support of its contention that the unregistered lease deed cannot

be looked into for the purposes of ascertaining the rent payable by the

respondent-company, my attention was drawn to a judgment of the

learned Single Judge of this Court (Sanjiv Khanna, J) in Manju Bagai

vs. Magpie Retail Ltd. 175 (2010) DLT 212.

10. In his reply, the learned counsel for the petitioner sought to

distinguish the aforesaid judgment. He also submitted that the non-

denial in the reply to the legal notice regarding the amount of rent

payable for the premises amounted to an admission by the respondent

which cannot be retracted.

11. On a careful consideration of the matter, I am of the view that

there is no merit in the defence sought to be raised by the respondent-

company. Even assuming for the sake of argument that the lease deed,

being an unregistered document, cannot be looked into for the purpose

of ascertaining the monthly rent, since the respondent-company never

disputed the amount of rent payable for the premises and in fact even

admitted the same in the counter, the petition must be held to be

maintainable. Firstly, in the notice issued by the petitioner, it was

clearly mentioned that the monthly rent was Rs. 3,25,000/- exclusive of

the maintenance charges directly payable to the maintenance agency and

the electricity and water charges. In its reply sent by E-mail, the

respondent-company has only stated as below:-

"We have received your Notice and we are taking the steps as per the LAW of the Land.

You have cheated us for the Last one year by giving us all false Promises and assurances for the services to be provided.

You had no intentions of giving any services as promised by you and you thought that you can get away with it."

There was no denial in the reply to the statutory notice about the amount

of the rent. Moreover in the counter, in paragraph 12, the respondent-

company admitted that the total rent paid by it was Rs.27,29,500/-

which conforms to the claim of the petitioner that the rent payable in

respect of the premises was Rs.3,25,000/- per month. There is no denial

in the counter, denying the averment in paragraph 6 of the petition that

the rent in respect of the premises was fixed by the parties at

Rs.3,25,000/- per month. Considering these facts, it is clear that even if

the lease deed is not to be looked into, it has otherwise been proved that

the rent for the premises was Rs.3,25,000/- per month.

12. The learned counsel for the respondent submitted that the

premises were not properly maintained despite several intimations given

to the landlord and it is inconceivable, and would also be unjust, that the

respondent should be asked to pay for such premises the full rent of

Rs.3,25,000/-. I am of the view that this is merely a counter blast to the

claim made by the petitioner. Annexure-2 of the counter is an e-mail

sent by the petitioner. On 15th August, 2012, the respondent wrote to

the petitioners that the latter have been talking only about the payments

due to them without caring for the facilities which the respondent has to

get. In this e-mail it was specifically stated that the respondent had

agreed to pay monthly rental of Rs.3,25,000/-. In reply, the petitioners

sent an e-mail on 23rd August, 2012 regarding the progress made in

respect of the repair works and asking the respondent not to withhold

the rents any further. On 27th August, 2012 the respondent sent an e-

mail to the petitioners attaching pictures of the living room where

repairs to the AC were carried out and objecting to the non-completion

of the work. To this, the petitioner stated that the entire wall will be

painted once the same dries up and requested the respondent to wait for

some more time. Simultaneously the maintenance agency was also

alerted about the request of the respondent-company. It would thus

appear that these are routine requests made by the tenant of the premises

to the landlord for maintenance work which was also being attended to

and in the very nature of things there is likely to be some time taken to

set things right. The petitioners have not been negligent in attending to

the requests of the respondent-company. In any case that is not a

justification for not paying the agreed rent in time. These are not

substantial issues or defences which can successfully be put forth in

answer to the present petition for winding up on the ground that the

respondent-company is neglecting to pay the rental amounts. It may

also be noted that the respondent, despite all the protests about the

repairs and maintenance not being properly carried out, vacated the

property only in March, 2013 and that too only under orders of this

Court.

13. The judgment (supra) upon which reliance was placed by the

learned counsel for the respondent deals with the question of the liability

to pay liquidated damages in the form of rent for the unexpired portion

of the lease period of three years. The main question examined in that

case was whether the rent payable for the unexpired portion of the lease

can be said to be liquidated damages. This was negatived by the Court

which held that it cannot be considered as liquidated damages. No

doubt in paragraph 9 of the judgment, the other issue as to whether an

unregistered lease deed can be relied upon by the petitioner was also

considered and it was observed that it cannot be. This however is not an

impediment to the petitioner in the present case since I have earlier

found that even de hors the lease deed there is an admission by the

respondent that it had agreed to pay a monthly rent of Rs.3,25,000/-

14. In view of the aforesaid discussion, there is no force in the

defence sought to be put up on behalf of the respondent. The petition is

admitted.

List the company petition and the application on 13th September,

2013 for further proceedings.

(R.V. EASWAR) JUDGE AUGUST 02, 2013 Bisht