Arun Bhardwaj vs Onicra Credit Rating Agency Of ...
2014 Latest Caselaw 2199 Del

*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                            Date of Decision: 1st May, 2014

+    CO.PET. 238/2013

     ARUN BHARDWAJ                                      ..... Petitioner
                Through:               Mr.Rajiv Kumar, Advocate

                         versus

     ONICRA CREDIT RATING AGENCY OF INDIA LTD..... Respondent

Through: Mr.Sanjiv Bahl, Mr.Udit Gupta and Mr.Eklavya Bahl, Advocates

CORAM:

HON'BLE MR. JUSTICE SANJEEV SACHDEVA

SANJEEV SACHDEVA,J (ORAL)

1. The petitioner has filed the present petition under Section 433(e) and 434 of the Companies Act(herein after referred to as the said Act). As per the petitioner the petitioner was offered the position of the Executive Director by the respondent by letter dated 29-07-2009 on a monthly salary of RS.8,33,333/- inclusive of allowances apart from the salary. The petitioner was also offered by the respondent's performance bonus of Rs 20 lakhs and retention of Rs 10 lakhs and also a joining bonus of Rs 30 lakhs in two installments. As per the petitioner, the first installment of Rs 15 lakhs was paid, however, the second installment of Rs15 lakhs was not paid. The petitioner accepted the offer and joined the services of the respondent company on 19.10.2009. As per the petitioner, the petitioner rendered services to the respondent company to the full satisfaction of the management. The petitioner contends that the respondent company suffered a loss of Rs 89.48 lakhs in the month of November 2009.

However, with the efforts of the petitioner in July 2010 the company increased its revenue and earned a profit of Rs 5.18 lakhs which revenue subsequently increased further.

2. As per the petitioner, based on the performance of the petitioner, the petitioner was paid 100% amount of his performance bonus for the months of Oct 2009 to March 2010 which amount was paid to him in June 2010.The respondent are alleged to have in recognition of the efforts of the petitioner sent the petitioner to foreign trips in May and September 2010 along with his team members.

3. As per the petitioner on account of disputes with one of the directors of the respondent company, the petitioner was forced to resign from the services of the respondent company. The resignation was offered on 21.09.2010 and was accepted on the same date. The petitioner has contended that the petitioner was neither paid his salary nor other dues by the respondent company. As per the petitioner a sum of Rs 82,61,287.49 was due and payable by the respondent company when the petitioner resigned from the services.

4. The petitioner has contended that for the recovery of the said amount the petitioner has on 29-04-2011 find a civil suit. As per the petitioner, the petitioner recently in 2013 downloaded his annual tax statement from the website of Income Tax Department and was surprised to note that the respondent company had claimed to have paid to the petitioner an amount of Rs.15,69,977/- on 31-08-2010 after deducting TDS of Rs 2,30,399/-. The petitioner thereafter issued a legal notice demanding the said amount of Rs 15,69,977/- which notice was not complied with and accordingly the present petition has been filed.

5. Learned counsel for the petitioner contends that by filing form 26-AS by the respondent company there is an acknowledgement that the respondent company is liable to pay the said amount of Rs.15,69,977/- to the petitioner.

6. The respondents have opposed the present petition and have filed their reply. The stand taken by the respondent in the reply is that there is no clear liability either admitted by the respondent or an amount admittedly payable by the respondents.

7. Respondents have contended that the winding up proceedings cannot be utilized or used for the purposes of recovery of money and it is only where a company is unable to pay its debt that a petition under Section 433(e) read with Section 434 is maintainable.

8. The respondent company has contended that there are bona fide serious disputes with respect to the amount claimed by the petitioner and in fact amounts are due and payable by the petitioner to the respondent company.

9. The respondent has contended that as one of the terms of employment of the petitioner was that he would be paid performance bonus so the petitioner raised bills in cases which were not allotted to the respondent company by the clients for verification. The clients denied there liability to pay the said amounts. Since over billing was done and bills were raised for the work not assigned to the respondent company the payments could not be recovered and had to be written off as bad debts for cases not allotted to the respondent company and the respondent company also had to issue credit notes to the clients and suffered bad debts.

10. The respondent contends that the petitioner had forged, fudged, fabricated and manipulated the figures in order to show performance on

the basis of which he could obtain higher incentives. As per the respondents, the respondents became aware of this method of operation after the tax had been deposited with the Income Tax Department and it is for the said reason that the respondent company did not pay the said amount to the petitioner for which tax was deposited with the Income Tax Authorities of the petitioner.

11. As per the respondents in the civil suit for recovery filed by the petitioner a counter claim of Rs 33,52,671/- has been filed by the respondents on the ground that the petitioner had forged, fudged and fabricated the figures for gaining incentives. It is, in these circumstances, the respondent has contended that there are bona fide disputes involving disputed questions of fact that are required to be adjudicated before a civil court. The respondent further contends that since a civil suit has already been filed by the petitioner in which the counter claim has been filed by the respondent company, the veracity of the claim of the petitioner is under a cloud and the same can be adjudicated upon after a trial.

12. Learned counsel for the respondent has contended that in view of the fact that a suit has been filed in which a counter claim has been filed and a bona fide dispute raised, the petition is not maintainable and the petitioner cannot use the provisions of Section 433 read with Section 434 to recover the alleged amount from the respondent company.

13. Learned counsel for the petitioner has relied on the judgment of this court in Rishipal Raj Gupta v. S. J. Knitting and Fishing Mills; 1998 (73) DLT 593 to contend that mere pendency of a suit for recovery of debt does not bar winding up proceedings. He has further relied on the judgment of the Division Bench of this Court in Numero Uno

International Limited v. Prasar Bharti; (2008) 150 DLT 688 to contend that mere pendency of a counter claim does not denude the arbitrator of the power to make an interim award in the original suit for claim, if such an interim award is otherwise justified.

14. The legal proposition as laid down by the two judgments cited by the counsel for the petitioner are well settled. It is no longer res integra that mere pendency of a civil suit does not bar a winding up petition and further mere pendency of a counter claim does not denude the arbitrator of the power to pass an interim award in the original claim. However, the said judgments are not applicable in the facts of the present case.

15. The respondents, in my view, have raised a plausible bonafide defence. The defence raised by the respondents that the petitioner had fudged, fabricated the figures for the purposes of availing incentives is a defence the defence which would be tested at trial. The respondent company has raised a defence that on account of manipulation and over billing the respondent company had suffered losses. The petitioner has disputed this position and has submitted that the petitioner was not responsible for any over billing or manipulation of figures, but this raises disputed questions of fact that would require intricate examination of the facts and evidence on the part of the parties which cannot be done in proceedings for winding up. The respondent company has contended that the company suffered bad debts of over Rs.4 crores and could not collect amounts exceeding Rs.1.35 crores and the claims made by the petitioner that substantial revenue was generated was false.

16. In my view, the respondent company has raised factual disputes that would require examination and there is no clear admission on the part of the respondent company of the amount claimed by the petitioner. The

mere fact that income tax was deposited with the tax authorities for a payment that was proposed to be made to the petitioner prior to the discovery of the alleged manipulation done by the petitioner would not amount to a clear admission of debt on part of the respondent. It is the settled position of law that where a bonafide defence is raised in the winding up petition that merits an examination, a Company Court has to direct the petitioner to prove its claim in a civil suit.

17. Learned counsel for the respondent has relied on the judgment in the case of Lewanel Hemant India Pvt. Ltd. Vs. Interglove Aviation Ltd. 2009 (4) AD Delhi 488 to contend that where disputed question of facts are raised and a plausible and bona fide defence is raised by a respondent and where the petitioner has already instituted a civil suit for recovery of the disputed debt, the machinery of winding up should not be allowed to be used merely as a tool for recovering the disputed debt from the company. The above contention of the counsel for the respondent merits acceptance. In my view disputed questions of facts have been raised by the respondent and the respondents have been able to disclose a plausible and bona fide defence to the claim of the petitioner. The petitioner has already filed a civil suit which pending in which a counter claim has been raised by the respondent and as such the present petition seeking winding up would not lie.

18. Another aspect that has to be noticed is that the petitioner resigned on 21.9.2010 and filed a suit for recovery on 29.4.2011 in which counter claim was filed in July, 2011, the present petition was filed in 2013 after a gap of approximately two years of the filing of the suit. The only explanation given is that the petitioner had downloaded his annual tax statement from the website of Income Tax Department. The tax is

alleged to have been deposited with the Income Tax Authorities on 31.8.2010. The entry with respect to the said tax to the credit of the petitioner in the form 26-AS would have been reflected by the Income Tax Authorities in the year 2010 itself. No plausible explanation is averred in the petition as to how the petitioner missed this type of entry for a period of over two years.

19. For the reasons aforesaid, the present petition is dismissed. However, the finding recorded herein shall not prejudice either party in any legal proceedings including civil suit filed by the petitioner and the counter claim raised by the respondent. No order as to costs.

SANJEEV SACHDEVA, J MAY 01, 2014/sv