Delhi High Court
Vineet Madan vs M/S Bravo Global Limited on 3 February, 2016
$~18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 204/2013 and CM No.726/2013 (for appointment of a
provisional liquidator)
VINEET MADAN ..... Petitioner
Through: Ekta Sikri and Mrs. Adwaita Sharma,
Advocates
versus
M/S BRAVO GLOBAL LIMITED ..... Respondent
Through: Mr. Arun Thaman, Shareholder of the
respondent company
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
ORDER
% 03.02.2016
1. Pursuant to order dated 14.01.2016, passed by this court, Mr. Arun
Thaman is present in court, today. However, this time around, his lawyer is
not present in court. The position was exactly the opposite, when, the
counsel appearing for Mr.Arun Thaman on the previous date had sought
accommodation on his behalf.
1.1 Today, Mr. Arun Thaman takes the position that he is neither the
Managing Director nor a Director in the respondent company.
1.2 The record, however, shows that Mr. Arun Thaman, who was present
in the hearing dated 09.12.2014, had represented to the court that he was the
Managing Director of the respondent company.
1.3 Mr. Arun Thaman says he resigned as a Director of the respondent
company in 2015.
2. As indicated above, even on 14.01.2016 when, an accommodation
was sought on Mr. Arun Thaman's behalf, it was represented that he was the
Director of the respondent company.
3. Be that as it may, Mr. Arun Thaman says that the position as it obtains
today, is that, he is merely a shareholder holding a little over 3/4th of the
equity stake in the respondent company. To be precise, it is Mr. Arun
Thaman who says that he holds 76% of the equity shares in the respondent
company.
3.1 The balance 24%, Mr. Arun Thaman says, is held by Mr. Parveen
Kumar and Ms. S. Pandey. Mr. Arun Thaman, however, is not able to tell
me the exact equity stake of Mr. Parveen Kumar and Ms. S. Pandey,
respectively, in the respondent company.
3.2 Furthermore, Mr. Arun Thaman says that, presently, there are three
directors on the board of the respondent company. These being: Mr.
Sandeep Kalia, Mr. Kamal Wahi and Ms. S. Pandey.
4. In so far as the merits of the petition are concerned, it is noticed that
the petitioner avers that a sum of Rs.36,52,160/- is due and payable to him.
4.1 The details with respect to the manner in which the petitioner has
arrived at this figure are set out in table-A of paragraph 15 of the petition.
For the sake of convenience, the same is extracted hereinbelow:
S. No. Bill No. Date of Bill Amount Rs.
1 213 11/01/2012 9,75,602
2 220 27/01/2012 9,73,275
3 233 16/02/2012 12,19,503
4 239 02/03/2012 7,37,183
5 240 02/03/2012 2,45,727
6 244 05/03/2012 4,91,455
7 267 20/04/2012 7,53,318
Total Bills raised/ amt. Payable 53,96,063/-
5. A perusal of the aforesaid table would show that against 7 bills raised
by the petitioner, between 11.01.2012 and 20.04.2012, which amounted to a
total sum of Rs. 53,96,063/-, the respondent company made payments to the
extent of Rs. 17,43,903/-.
5.1 It is after the said adjustment is made that the balance amount, (which
is what the petitioner claims), comes to a figure of Rs. 36,52,160/-.
6. The said claims arise out of transactions conducted between the
parties, which involved the supply of fans by the petitioner to the respondent
company.
6.1 It is averred by the petitioner that against supplies made, certain post-
dated cheques were issued. These cheques were 23 in number out of which,
on presentation, 21 cheques were dishonoured. The petitioner avers that
these cheques, which date back to February, 2012, were presented for
encashment, on 16.05.2012.
6.2 The aforementioned cheques were dishonoured and returned by the
petitioner's banker with the endorsement: "exceed arrangement". The return
of the cheques, it is stated, occurred on 17.05.2012. The details of the
dishonoured 21 cheques are set out in paragraph 18 of the petition. For the
sake of convenience, the said details are extracted hereinbelow:
Cheque Date Amount Drawn on Date of Remarks
No. Return
031667 20/02/12 2,00,000 Bank of 17/5/12 Exceed
Maharashtra, Arrangement
Sector-19,
Noida
031668 25/02/12 2,00,000 - do - 17/5/12 - do -
031670 29/02/12 1,65,301 - do - 17/5/12 - do -
031703 03/03/12 1,50,000 - do - 17/5/12 - do -
031704 05/03/12 1,50,000 - do - 17/5/12 - do -
031705 08/03/12 1,50,000 - do - 17/5/12 - do -
031706 10/03/12 1,50,000 - do - 17/5/12 - do -
031707 13/03/12 1,50,000 - do - 17/5/12 - do -
031708 15/03/12 1,50,000 - do - 17/5/12 - do -
031817 27/03/12 2,00,000 - do - 17/5/12 - do -
031818 31/03/12 2,00,000 - do - 17/5/12 - do -
031822 1/04/12 2,19,503 - do - 17/5/12 - do -
031819 05/04/12 2,00,000 - do - 17/5/12 - do -
031820 08/04/12 2,00,000 - do - 17/5/12 - do -
031821 10/04/12 2,00,000 - do - 17/5/12 - do -
031834 28/04/12 1,50,000 - do - 17/5/12 - do -
031836 30/04/12 1,50,000 - do - 17/5/12 - do -
031837 03/05/12 1,50,000 - do - 17/5/12 - do -
031838 06/05/12 1,50,000 - do - 17/5/12 - do -
031839 09/05/12 1,37,183 - do - 17/5/12 - do -
031840 12/05/12 1,50,000 - do - 17/5/12 - do -
Total Rs.
35,71,987
7. This apart, the petitioner also makes an assertion that though
outstanding amounts were not paid to him against supplies made, he had
secured information, to the effect, that C-Forms were obtained by the
respondent company for a value which approximates the amount claimed by
him. The details of the C-Forms issued, are set out in paragraph 11. The
same are extracted hereafter:
Date Particulars Invoice C-Form
Value Rs.
19.01.2012 Appex International 9,75,602.64 19081212756134
24.02.2012 Appex International 12,19,503.30 19081212756134
12.03.2012 Appex International 7,37,183.85 19081212756134
17.03.2012 Appex International 4,91,455.50 19081212756134
02.05.2012 Appex International 7,29,018.00 19081212756134
04.02.2013 Appex International 9,73,275.60 19081212756134
7.1 To be noted, Appex International is the proprietorship concern of the
petitioner herein.
8. It is in this context that the petitioner had issued a demand notice
dated 11.02.2013, to which a reply dated 01.03.2013 was sent by the
respondent company.
8.1 In the reply, the defence taken by the respondent company is briefly
stated as follows: that the supplies made were of inferior quality and/or
damaged; the post-dated cheques were issued as security against purchase
orders and that they were misused, that is, were presented for encashment;
and thus, amounted to breach of trust; and lastly, that there is no liability
owed to the petitioner.
8.2 It may be noted that while these defences have been taken in the reply
to the demand notice, there were no details set forth with regard to
correspondence exchanged, if any, with the petitioner in respect of the issue
articulated therein. In particular, there is no reference to any letter which
may have been addressed by the respondent company to the petitioner with
regard to the quality of the goods supplied or that the goods supplied were
damaged. This is despite the fact that a specific averment obtains in
paragraph 3 of the reply dated 01.03.2013, which alludes to the fact that a
"written communication", was issued by the respondent company to the
petitioner.
8.3 Furthermore, it is seen on perusal of the reply by the respondent
company that it only elaborates on the aforesaid defences taken qua the
claim raised by the petitioner. It is averred that on account of defective
goods supplied, the respondent company had incurred a huge loss to the tune
of Rs. 80 lacs, which, apparently, is the amount demanded by its dealers
and/or retailers.
8.4 I must, however, note that in the reply there is a reference to four
letters dated 25.02.2012, 29.03.2012, 18.04.2012 and 14.05.2012, which,
inter alia, allude to the defect in the fans pertaining to the angle of the blade,
in the context of the air that the fans throw up upon being switched on.
8.5 Pertinently, in the reply filed, the respondent company admits the
receipt of invoices. This admission is sought to be explained by the
respondent company by taking the stand that the receipt of invoices only
established the quantum (i.e. the number of fans) received, and not, the
amount payable against the supplies made.
8.6 It is further averred in the reply that the sum of Rs. 17,43,903/- was
paid prior to the respondent company getting feedback on the quality of the
fans supplied by the petitioner.
8.7 In so far as the assertion made by the petitioner that the respondent
company got C-Forms issued from the Sales Tax Department, the said
assertion, is sought to be denied by the respondent company. It is, on the
other hand, stated in the reply that the petitioner did not issue C-Forms,
despite, repeated requests by the respondent company. It is also averred that
the concerned Sales Tax Department did not issue C-Forms to the
respondent company as it was unable to provide the "input forms" due to
defective material supplied by the petitioner.
9. To be noted alongwith the rejoinder, the petitioner has filed the copies
of the C-Forms issued to the respondent company, to meet the outright
denial of this fact by the respondent company. Copies of these C-Forms are
appended, collectively, as Annexure P-8 to the rejoinder.
9.1 As regards the alleged defects in the goods supplied, the petitioner has
filed an inspection report dated 10.01.2012, based on which, it is stated that
minor defects, which were pointed out by the respondent company, were
corrected.
10. Having perused the record, it is clear that when in the first instance a
response was sent by the respondent company to the demand notice dated
11.02.2013, the defences taken therein were not backed by relevant dates
and material. The petitioner, on the other hand, in the rejoinder has
categorically set up a case that C-Forms have actually been obtained by the
respondent company. Furthermore, as indicated above, the inspection report
dated 10.01.2012, has also been filed.
10.1 On the other hand, while the respondent company has sought to
contend in its reply that goods supplied were defective and, therefore,
amounts were not paid as they were rejected by its dealers and retailers,
there is no material filed to show that goods had been returned by its dealers
and/or retailers. To my mind, the defences set up are dubious and lack
credibility, to say the least.
10.2 It is in this context, I asked Mr Arun Thaman, whether the respondent
company would be in a position to secure the amounts payable to the
petitioner.
10.3 Mr.Arun Thaman, in response, in fact states that he would have no
objection if this Court were to pass an order of winding up.
10.4 What is curious, is that, Mr Arun Thaman, while representing to the
court in the previous proceedings that he was the Managing Director / the
Director of the respondent company, has today, taken the position that he is
merely a shareholder. Mr. Arun Thaman's conduct does not inspire
confidence. It almost appears that the respondent company is seeking to
shy-away from its liability to the petitioner. Mr Arun Thaman's shifting
stand raises an apprehension that the assets of the respondent company may
be salted-away if, immediate remedial steps are not taken.
11. Therefore, given the foregoing facts and circumstances and the state
of the pleadings and material placed before me, I am inclined to admit the
petition and appoint a Provisional Liquidator to secure the assets of the
respondent company. It is ordered accordingly. The Official Liquidator
(OL) attached to this court is appointed as the Provisional Liquidator. The
learned counsel for the petitioner will supply a complete copy of the paper
book to the OL. Citations shall be published by the petitioner in the
Business Standard [(in English), Delhi Edition] and the Jansatta [(in Hindi),
Delhi Edition]. The application, being: CA No.726/2013 is disposed of. The
respondent company is also injuncted from transferring, selling or creating
any third party interest in its assets, without prior permission of the court.
The Provisional Liquidator will seize the assets, books of accounts,
documents and other records of the respondent company and prepare an
inventory of the same.
12. If any police assistance is required, the same shall be extended by the
Station House Officer (SHO) of the concerned area on a request being made
by the OL in that behalf.
13. The OL will file his report before the next date of hearing.
14. List on 25.07.2016.
RAJIV SHAKDHER, J
FEBRUARY 03, 2016
Yg/kk
