Delhi High Court
Rahul Kulshreshtra vs Triveni Media Ltd on 12 November, 2018
$~CP-18
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 12.11.2018
+ CO.PET. 15/2012
RAHUL KULSHRESHTRA ..... Petitioner
Through Mr.Pankaj Bhatia, Mr.Dhruv Surana
and Mr.Ashish Chaudhury, Advs.
versus
TRIVENI MEDIA LTD ..... Respondent
Through Mr.Harish Malhotra, Sr.Adv. with
Mr.Sanjay S.Chhabra, Adv.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J. (ORAL)
1. This petition is filed under section 433(b), (e), (f), 434 and 439 of the
Companies Act, 1956 seeking winding up of the respondent company. The
case of the petitioner is that the petitioner is the ex employee of the
respondent company. He joined the respondent company on 01.06.2007 as
Chief Executive Officer in terms of appointment letter dated 30.3.2007. It is
pleaded that the respondent company stopped giving salary to the petitioner
all of a sudden from September 2008 onwards on the plea that the
respondent company was going into losses and that the salary would be paid
as soon as funds are available. It is pleaded that on this assurance the
petitioner continued working in the company. However, three months passed
but he was not paid the salary despite requests. The petitioner started facing
financial hardship hence in December 2008 he submitted his resignation
which was accepted by the respondent company on 18.1.2009. Based on the
CO.PET.15/2012 Page 1
above, the petitioner claims unpaid salary and other dues including interest
totalling Rs.3.13 crores. Ultimately, on 28.12.2009 the petitioner sent legal
notice claiming outstanding dues of Rs.80,35,664/- as some partial payments
have been made in the interregnum.
2. I have heard learned counsel for the parties. Learned senior counsel
appearing for the respondent has pointed out that as per terms of the
appointment letter dated 30.3.2007 the petitioner was obliged to give three
months‟ notice before leaving the employment. He submits that admittedly
no such three months‟ notice was given as the petitioner had resigned on
16.12.2008 and more or less immediately thereafter stopped coming for
work. It is submitted that the petitioner is liable to pay three months salary.
It has further been pleaded that the petitioner continued to withhold cameras
files and other equipments of the respondent company and hence payments
cannot be released to the petitioner. Lastly, it was pleaded that as per the
winding up petition the petitioner claims unpaid dues of Rs.3,13,01,394/-
whereas statutory notice was sent only of Rs.80,35,664/-.
3. Learned counsel for the petitioner has relied upon an email dated
9.3.2009 sent by the respondent where the respondents have admitted an
outstanding due of Rs.15,96,164/- as payable to the petitioner. It has also
been pointed out that as the salary was not being paid to the petitioner the
petitioner was entitled to leave forthwith and the question of giving notice
for three months as per the terms and conditions of the appointment letter
dated 30.3.2007 would not arise.
4. The concerned clause 2.9 of the appointment letter dated 30.3.2007
reads as follows:-
CO.PET.15/2012 Page 2
"2.9 Notice Period: Both the parties have to serve a notice
period of Three months in case of resignation or termination. In
the case of termination the employer will pay Twelve (12)
months salary."
5. Hence, both the parties had to serve notice for three months in case of
termination or resignation. In the present case admittedly the petitioner has
resigned on 16.12.2008 and has subsequently stopped working. In the
absence of the three months‟ notice it would appear that the respondent was
entitled to deduct salary of three months from the dues of the petitioner.
6. Regarding the claim of the respondent about the equipments being
still in custody of the petitioner reference may be had to the reply that was
being filed by the respondent to the winding up petition. Paragraph 4 of the
reply reads as follows:-
"4.That in addition to the aforesaid vehicle, the petitioner
continues to withhold various other important files, documents
and properties, viz. Media equipment, cameras, archives in CD
etc. The petitioner has failed to hand over the properties of the
company to the respondent at the time of his
resignation/termination of the services."
7. It is manifest from a reading of the above submission that the same is
bereft of any details. What is the nature of equipments in custody of the
petitioner? When was it handed over to the petitioner? No details
whatsoever have been provided. The allegation is vague and an afterthought.
In fact, as rightly pointed out in the Rejoinder there is no communication
placed on record to even show that the respondent has at any stage sought
return of these equipments from the petitioner. This plea of the respondents
is misplaced.
8. Coming to the email dated 9.3.2009 which has been sent by the
CO.PET.15/2012 Page 3
respondents immediately after the exit of the petitioner from the respondent
company the said email categorically confirms that the net payable to the
petitioner is Rs.15,96,164. It takes into account various salaries
reimbursements etc. This amount includes the salaries for August 2008 to
December 2008 and other payments. Accordingly, in my opinion, the
respondents have acknowledged the said amount as payable to the petitioner
on account of unpaid salary plus other dues and hence would remain liable
to pay the same to the petitioner. The same remains a debt due and payable
to the petitioner which has not been paid by the respondent.
9. In Mediquipsystems (P) Ltd. vs. Proxima Medical System GMBH,
(2005) 7 SCC 42 the Supreme Court held as follows:-
"18. This Court in catena of decisions held that an order
under Section 433(e) of the Companies Act is discretionary.
There must be a debt due and the company must be unable to
pay the same. A debt under this section must be a determined
or a definite sum of money payable immediately or at a future
date and that the inability referred to in the expression 'unable
to pay its dues' in Section 433(e) of the Companies Act
should be taken in the commercial sense and that the
machinery for winding up will not be allowed to be utilized
merely as a means for realising debts due from a company."
10. In the present case, the debt is clearly due and payable by the
respondent. I accordingly admit the present petition.
11. Consequently, the Official Liquidator attached to this Court is
appointed as the Provisional Liquidator. He is directed to take over all the
assets, books of accounts and records of the respondent-company forthwith.
The citations be published in the Delhi editions of the newspapers
„Statesman‟ (English) and „Veer Arjun‟ (Hindi), as well as in the Delhi
CO.PET.15/2012 Page 4
Gazette, at least 14 days prior to the next date of hearing. The cost of
publication is to be borne by the petitioner who shall deposit a sum Rs.
75,000/- with the Official Liquidator within 2 weeks, subject to any further
amounts that may be called for by the liquidator for this purpose, if required.
The Official Liquidator shall also endeavour to prepare a complete inventory
of all the assets of the respondent-company when the same are taken over;
and the premises in which they are kept shall be sealed by him. At the same
time, he may also seek the assistance of a valuer to value all assets to
facilitate the process of winding up. It will also be open to the Official
Liquidator to seek police help in the discharge of his duties, if he considers it
appropriate to do so. The Official Liquidator to take all further steps that
may be necessary in this regard to protect the premises and assets of the
respondent-company.
12. In the interest of justice, the above order is kept in abeyance for a
period of one month to enable the respondents to pay the said amount of
Rs.15,96,164/- to the petitioner with 6% Simple interest w.e.f. 9.3.2009. In
case the payment is made within four weeks from today the aforesaid order
appointing the OL as the Provisional Liquidator shall stand revoked.
13. As the other amounts claimed by the petitioner are disputed it would
be open to the petitioner to take steps for recovery of the amounts as per
law. In case any proceedings are initiated by the petitioner the observations
made herein by this court shall not be binding on the court in which such
proceedings may have been initiated by the petitioner.
14. At this stage, learned counsel for the petitioner also prays for winding
up of the respondent company under section 433(b) of the Companies Act
claiming that the respondents have not filed their Statutory Report before the
CO.PET.15/2012 Page 5
ROC. Averments to this effect have been made by the petitioner in
paragraph 20 of the petition. In the reply respondents have denied this
aspect. Hence, no case for winding up is made out. Further, in my opinion,
this would be a discretionary relief which the court may pass in the facts and
circumstances of the case. Considering the nature of dispute between the
parties, in my opinion, it is not a fit case for winding up of the respondent
company under section 433(b) of the Companies Act. At this stage, learned
counsel for the respondent on instructions states that the returns have been
filed up to 2016-17.
15. List on 20.12.2018.
JAYANT NATH, J
NOVEMBER 12, 2018
n
CO.PET.15/2012 Page 6
