Delhi High Court
Re-M/S Apex Continental Ltd vs ............ on 19 March, 2018
$~CP-43
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 19.04.2018
+ CO.PET. 248/2010
RE-M/S APEX CONTINENTAL LTD ..... Petitioner
Through Mr.Sunil Singh Parihar and Mr.Adity
Dev Triguna, Advs. for Sanjay Bajpayee
Mr.D.Bhattacharya, Adv. for OL.
Ms.Neha Lakhwara, Proxy Counsel for ex-
director/Sanjay Gupta
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (Oral)
Co. Appl. No. 454/2018
This application is filed seeking condonation of delay in filing the
reply.
The application is allowed and the reply is taken on record.
Co. Appl. 1188/2014
1. This application is filed under Section 446 of the Companies Act,
1956 for recovery of an amount of Rs.12,52,712 as principal amount along
with interest @ 18% p.a. against the debtor of the company, namely,
Sh.Sanjay Vajpayee.
2. It is the contention of the OL that the petitioner Company was
provisionally wound up on 15.01.2013 and finally on 16.01.2014. As per the
statement of affairs filed by Sh.Virender Kumar Gupta, the ex-director of the
company a sum of Rs.12,52,712/- is shown due and recoverable against
Sh.Sanjay Vajpayee(respondent). A copy of the statement of affairs has been
annexed as Annexure A to the application. It is also pleaded that the OL also
examined the balance sheet of the Company wherein also the above amount
is shown as outstanding. A copy of the relevant part of the balance sheet is
also annexed to the application as Annexure-B. A demand letter dated
06.11.2013 was sent to Sh.Sanjay Vajpaye calling upon him to pay the said
amount. In response, a letter dated 19.11.2013 was received from Mrs.
Madhu Vajpayee wife of Sh.Sanjay Vajpayee whereby she pointed that Sh.
Sanjay Vajpayee was in judicial custody.
3. I am informed that he is presently not in custody.
4. The respondent has filed his reply. In the reply, it has been pleaded
that the petitioner Company was in the business of leasing and financing. In
June and July, the said Company had approached the respondent to work in
collaboration as the parties had known each other since long. A mutual
agreement dated 15.12.2008 was entered into between Sh. Virender Kumar
Gupta and the respondent whereby they agreed to join hands to perform the
tender work/supplies to the Government Department and Private Sectors
under the name of Joint Venture Firm M/s.Apex Continental Ltd. The
respondent is said to have worked pursuant to the said mutual agreement.
The petitioner Company under liquidation had also wanted to open a
branch office in Lucknow and had also hence approached the respondent for
the same. On 20.8.2008 a rent agreement was executed between the Apex
Continental Ltd.(Petitioner) and Smt.Madhu Vajpayee, wife of the
respondent whereby it was agreed that that the property measuring 1800 sq.
ft would be given on rent of Rs.35,000/- per month for office purposes. A
copy of the alleged rent agreement has been filed.
It hence pleaded that a sum of Rs.12,52,712/- was given to the
respondent in lieu of the services and duties performed by the respondent
and the rent due.
5. I have heard learned counsel for the parties.
6. A few facts are noteworthy when one reads the defence of the
respondent.
7. It is firstly pleaded that the respondent and the petitioner Company
entered into a mutual agreement whereby they agreed to join hands to do
tender work/supplies to the government department and to the private sector.
However, no details are given. How many tenders were filled, supplies were
made to which department, the nature of the supplies made, revenue earned,
etc., no details are given. It is not possible to believe this sketchy and vague
statement bereft of details being made by the respondent.
8. Another alleged consideration for the said payment is the rentals of
the property which was allegedly taken on rent by the petitioner Company as
allegedly evidenced by the rent agreement dated 20.08.2008. The Rent
Agreement is not registered. The existence of a rented premises would be
evident from the documents of the petitioner company like letter heads,
purchase orders, invoices, etc. Such document usually have the address of
the company. No such documents are filed. In the absence of any proper and
cogent evidence on record to show that the petitioner company was
operating an office from the stated premises in Lucknow as claimed, the said
plea of the respondent cannot be accepted.
9. Even otherwise, it is surprising to note that the
commission/consideration payable to the respondent under the alleged
mutual agreement dated 5.12.2008 and the alleged lease deed has been paid
in one lump sum by means of a single cheque for Rs.12,52,712/-. The plea is
not acceptable.
10. Clearly, the defence raised by the respondent is vague. The alleged
consideration on account of which payment was made is bereft of details
and cannot be believed. It is quite clear that the defence taken is completely
moonshine. The amount of Rs.12,52,712/- was a loan to the respondent and
the respondent is bound to refund the same.
11. Under Section 446(2)(b) of the Companies Act this court has powers
to adjudicate any claims made by or against the respondent. It is clear that in
exercise of the said powers, this court should give appropriate directions to
the respondent. The powers of this court under Section 446(2) of the Act
were also elaborated by the Supreme Court in the case of Sudarsan Chits (I)
Ltd. vs. O. Sukumaran Pillai and Ors., AIR 1984 SC 1579 where the Court
held as follows:-
"9..... Now at a stage when a winding up order is made the
company may as well have subsisting claims and to realise these
claims the Liquidator will have to file suits. To avoid this
eventuality and to keep all incidental proceedings in winding up
before the court which is winding up the company, its
jurisdiction was enlarged to entertain petition amongst others for
recovering the claims of the company. In the absence of a
provision like Section 446(2) under the repealed Indian
Companies Act, 1913, the Official Liquidator in order to realise
and recover the claims and subsisting debts owed to the company
had the unenviable fate of filing suits. These suits as is not
unknown, dragged on through the trial court and Courts of appeal
resulting not only in multiplicity of proceedings but would hold
up the progress of the winding up proceedings. To save the
company which is ordered to be wound up from this prolix and
expensive litigation and to accelerate the disposal of winding up
proceedings, the parliament devised a cheap and summary
remedy by conferring jurisdiction on the court winding up the
company to entertain petitions in respect of claims for and
against the company. This was the object behind enacting
Section 446(2) and therefor, it must receive such construction at
the hands of the court as would advance the object and at any rate
not thwart it."
This is a fit case for this court to exercise its powers under Section
446(2) of the Companies Act.
12. Accordingly a direction is passed to the respondent to deposit with the
OL within four weeks from today the said sum of Rs.12,52,712/- along with
simple interest @ 7% p.a. from the date of the receipt of the loan till the
payment is received by the OL.
13. The application is disposed of.
CO.PET. 248/2010
List on 30.08.2018.
JAYANT NATH, J
APRIL 19, 2018
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