Delhi High Court
Shri Moolchand Kharaiti Ram Trust vs Nirulas Corner House Private ... on 4 October, 2018
$~CP-9
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 04.10.2018
+ CO.PET. 404/2014
SHRI MOOLCHAND KHARAITI RAM TRUST ..... Petitioner
Through: Mr Gaurav Bahl and Ms Aakanksha
Kaul, Advocates.
versus
NIRULAS CORNER HOUSE PRIVATE LIMITED. .... Respondent
Through: Ms Chetanya Puri, Advocate.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. This petition is filed under Sections 433(e), 434 and 439 of the
Companies Act, 1956 seeking winding up of the respondent Company.
2. The case of the parties is that the parties entered into an arrangement
on 31st March, 2009 whereby the respondent were to provide food and
catering services in the cafeteria, canteen and rooms to the patients,
attendants, doctors etc.
3. On 21.09.2012, the arrangement was further renewed with effect from
01.04.2012 and was executed for a period of two years. On 31.03.2014, no
further extension was agreed upon.
4. It is the case of the petitioner that the arrangement dated 21.09.2012
expired by efflux of time on 31.03.2014 and no further extension was
granted to the respondent. However, respondent continued to occupy the
premises without any authority to provide the services. It is also contended
CO.PET. 404/2014 Page 1 of 6
that the respondent failed to pay the dues towards commission, water and
electricity charges despite several reminders. The arrangement has ceased
since 02.05.2014.
5. It is stated that the sum of Rs.2,95,604/- is due and payable by the
respondent on account of commission, water and electricity charges along
with interest at the rate of 24% per annum. A statutory notice dated
02.06.2014 was sent to the respondent. The respondent instead of clearing
the dues have raised false and unwarranted issues. Further it is pleaded that
the respondent have also not stated in the reply filed any cogent reason for
not clearing the debt due and payable.
6. I have heard learned counsel for the parties.
7. Learned counsel for the petitioner has relied upon Annexure „D‟ to
the Terms of Arrangement dated 21.09.2012 to show that in terms of the
arrangement, the respondents were obliged to pay agreed commission of the
total net sale revenue. Reliance is also placed on Annexure „C‟ to submit
that water and electricity charges were due and payable.
8. Learned counsel for the respondent submits that on 02.05.2014, the
entry of the respondent in the premises was blocked and they were not
allowed to go in the premises. He also submits that the goods lying in the
premises were forcefully thrown out from the premises. He further submits
that the entire dues of the petitioner were paid uptil April, 2014. He also
submits that the respondent had appointed an Arbitrator and parties had gone
to Arbitration. However, the proceedings have come to an end on account of
technical reasons stated by the learned Arbitrator. He submits that in view of
this fact, the appropriate remedy for the petitioner is to approach the Civil
Court to claim his alleged dues and the present winding up proceedings are
CO.PET. 404/2014 Page 2 of 6
misplaced.
9. A perusal of the reply filed by the respondent shows that the
respondent merely denies the contentions that he has not made up-to-date
payment of commission. He also denies that he has not paid electricity and
water charges. He further reiterates that necessary charges were paid uptil
April, 2014.
10. What is interesting is that the reply simply states that all the payments
have been made. No further details are given in the reply. There is no
attempt to point out how much payments were made and in what manner.
No record is sought to be placed on record giving details of the amounts
paid and the manner in which the payments were made including, cheque
numbers and dates etc. The best evidence that is available with the
respondent, namely, the amount of payments and other details have been
hidden from the Court.
11. Reference in this context may be had to the judgment of the Supreme
Court in Kundan Lal Rallaram v. The Custodian, Evacuee Property
Bombay, AIR 1961 SC 1316, where the court held as follows:
"6. We shall now notice some relevant decisions. The Privy
Council in Murugesam Pillai v. Gnana Sambandha Pandara
Sannadhi: AIR 1917 PC 6 observed:
"A practice has grown up in Indian procedure of those in
possession of important documents or information lying by,
trusting to the abstract doctrine of the onus of proof, and
failing, accordingly, to furnish to the Courts the best
material for its decision. With regard to third parties this
may be right enough-they have no responsibility for the
conduct of the suit; but with regard to the parties to the suit
it is in their Lordships' opinion, an inversion of sound
practice for those desiring to rely upon a certain state of
CO.PET. 404/2014 Page 3 of 6
facts to withhold from the Court the written evidence in
their possession which would throw light upon the
proposition."
7. The same rule was reaffirmed in Rameshwar Singh v. Bajit
Lal: AIR 1929 PC 95 and was approved by this Court in Hiralal
v. Badkulal: AIR 1953 SC 225. These three decisions lay down
that it is the duty of a party to a suit in possession of important
documents to produce them in court, and if that duty is not
discharged the court may as well draw the presumption which it
is entitled to do under Section 114 of the Evidence Act. ...."
12. It is manifest that the reply filed by the respondent is vague and
evasive. There is no bonafide defence raised by the respondent. In this
context reference may be had to the judgement of the Supreme Court in IBA
Health (I) Pvt. Ltd. vs. Info-Drive Systems Sdn.Bhd., (2010) (4) CompLJ
481 (SC) where the Supreme Court held as follows:-
"17. The question that arises for consideration is that when there
is a substantial dispute as to liability, can a creditor prefer an
application for winding-up for discharge of that liability? In
such a situation, is there not a duty on the Company Court to
examine whether the company has a genuine dispute to the
claimed debt? A dispute would be substantial and genuine if it
is bona fide and not spurious, speculative, illusory or
misconceived. The Company Court, at that stage, is not
expected to hold a full trial of the matter. It must decide whether
the grounds appear to be substantial. The grounds of dispute, of
course, must not consist of some ingenious mask invented to
deprive a creditor of a just and honest entitlement and must not
be a mere wrangle. It is settled law that if the creditor's debt is
bona fide disputed on substantial grounds, the court should
dismiss the petition and leave the creditor first to establish his
claim in an action, lest there is danger of abuse of winding-up
CO.PET. 404/2014 Page 4 of 6
procedure. The Company Court always retains the discretion,
but a party to a dispute should not be allowed to use the threat
of winding-up petition as a means of forcing the company to
pay a bona fide disputed debt."
13. Consequently, the petition is admitted and 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 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.
14. However, in the interest of justice, the above order appointing the
Official Liquidator as provisional is kept in abeyance for the period of four
weeks. In case, the respondent pays to the petitioner the said sum of
Rs.2,95,604/-, the above order appointing the Official Liquidator shall stand
CO.PET. 404/2014 Page 5 of 6
revoked.
15. Learned counsel for the respondent seeks dasti order.
16. Let a copy of this order be given under signatures of the Court Master.
17. List on 20.11.2018.
JAYANT NATH, J.
OCTOBER 04, 2018
sn/v
