Delhi High Court
Sanjay Aggarwal vs Gitanshi Polychem Pvt Ltd on 15 July, 2014
Author: Sanjeev Sachdeva
$~16
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 554/2013
SANJAY AGGARWAL ..... Petitioner
Through Mr. Sandeep Jindal, Advocate.
versus
GITANSHI POLYCHEM PVT LTD ..... Respondent
Through Mr. Kunal Madan and Ms.
Meenu Bakshi, Advocates.
CORA M:
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
ORDER
% 15.07.2014
SANJEEV SACHDEVA, J (ORAL)
1. The petitioner has filed the present winding up petition
against the respondent company.
2. The case of the petitioner is that the petitioner had over
a period of time given Rs.97,50,000/- as loan to the
respondent company. It is contended that respondent
company failed to pay interest of sum of Rs.5,75,164/ -
to the petitioner as was mentioned in the TDS
Certificate issued to the petitioner.
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3. It is stated that for the year ending 31 st March, 2011,
there was a credit balance of Rs. 1,03,25,164/ - in the
Books of Accounts of the respondent company.
4. It is contended that the petitioner was thus admitted as
a creditor of the respondent company and the
respondent failed to pay the amount alongwith interest
thereon. In the above premise, the present petition
seeking winding up of the respondent company has
been filed.
5. Learned counsel appearing for the respondent has
contended that there is no debt due and payable to the
petitioner. It is contended that the petitioner had
invested money in the respondent company and the
amount paid was towards share application money. It is
contended that the Petitioner was to be allotted shares
in the ratio of 1/3rd of the equity capital of the
respondent company.
6. Reliance is placed on the letter issued by the Petitioner
dated 09.11. 2011. It is contended that the Petitioner
had issued the said letter requesting for the issuance of
shares.
7. The respondent has placed on record various other
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documents comprising of profit and loss account,
balance sheet, Resolution of the board of directors ,
ROC records, notices issued to the Petitioner etc. to
contend that shares were allotted to the petitioner at a
premium.
8. The balance sheet for the period ending 31 st March,
2012 has been placed on record to show that shares
were allotted to the petitioner at a premium during the
financial year 2011 - 2012. It is contended on behalf of
respondent that even requisite forms were filed with the
Registrar of Companies showing allotment of shares in
favour of the petitioner. Copy of Form No. 2 stated to
have been filed with the Registrar of Companies has
been placed on record. Resolution of the Board of
Directors dated 15.12.2011 authorizing the allotment of
shares in favour of the petitioner at a premium has also
been placed on record.
9. It is further contended that notice s were issued to the
Petitioner calling for payment of the call money in
respect of the said shares , however, the call money was
not paid by the Petitioner.
10. Though the letter dated 09.11.2011 is denied by the
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petitioner during the submissions made in court ,
however, there is no specific denial to the letter in the
rejoinder affidavit filed by the petitioner. Be that as it
may, the dispute with regard to genuineness or
otherwise of the letter is not to be gone into the present
proceedings which are summary in nature. The present
proceedings being of a summary nature, this court
would not go into the issue of disputed documents
unless the documents per se appear to be forged and
fabricated.
11. In a petition seeking winding up of a company for its
inability to pay its debt, w hat is to be seen is whether
there is a debt and whether a plausible defence is raised
by the respon dent for the non payment of the debt and
to the winding up petition. In case a plausible defence
is raised which is neither sham nor moonshine, the
company is not to be wound up in exercise of powers
under section 433 and 434 of the Companies Act, 1956.
If there are disputed questions of facts requiring deeper
examination and scrutiny by the court, then the parties
have to be relegated to a civil court for adjudication of
their respective contentions and pleas.
12. Learned counsel for the petitioner has submitted that
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there is a dispute with regard to the application and the
allotment of shares and further with regard to the
manner of allotment of shares which is stated to be not
in accordance with the Companies Act and the Rules
framed there under. It is contended that applicable
Accounting Standards have not been followed for the
allotment of the said shares.
13. Learned counsel for the petitioner submits that a suit
for recovery of the amount involved in the present
petition has already been filed by the petitioner and the
same is pending before the Senior Civil Judge at
Faridabad.
14. The disputes whether the petitioner ever applied for
issuance of shares or whether the shares were allotted
or not and if so whether the allotment is in accordance
with the statutory provisions are disputes which would
require a deeper examination that would be possible
only after a detailed trial. The disputes raised in the
present petition and by way of defence would be
required to be settled before a civil court. Since the
petitioner has already filed a suit of recovery of the
same amount and the disputes and the rival contentions
raised by the parties are being adjudicated upon in the
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civil court, the present petition would not be
maintainable. In my view the disputes raised by the
respondent are not moonshine and would require a
deeper examination.
15. I am of the view that summary procedure for winding
up cannot be used in the present facts and
circumstances. This Court is not a Court of recovery.
The present petition is thus not maintainable as the
plausible defence has been raised by the respondent.
16. The petition is accordingly dismissed with no orders as
to costs.
17. It is clarified that there is no expression of opinion on
the merits of the claim of petitioner or the defence
raised by the respondent. This Court is refraining to
exercise summary jurisdiction in the facts and
circumstances of the case. The civil court before whom
the disputes are pending would adjudicate them without
being influenced by anything stated in the above order.
SANJEEV SACHDEVA, J
JULY 15, 2014
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