Bon Lon Securities Ltd. vs Icri Research Pvt. Ltd.
2018 Latest Caselaw 5788 Del

$~CP-1
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                            Date of decision: 25.09.2018
+      CO.PET. 861/2015
       BON LON SECURITIES LTD.            ..... Petitioner
                    Through    Mr.Rajiv K Garg, Adv.

                          versus

       ICRI RESEARCH PVT. LTD.            ..... Respondent

Through Mr.Sunil Chaudhary, Adv.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

1. This petition is filed under Sections 433(e) and 434(f) of the Companies Act, 1956 seeking winding up of the respondent Company.

2. The case of the petitioner is that on 14.06.2018 in the normal course of its business, the petitioner provided Inter-Corporate Deposit of Rs.50 lakhs to the respondent subject to interest @ 18% p.a. and repayable within a period of 90 days. To secure the interest of the petitioner, the respondent executed a promissory note for Rs.50 lakhs as well as handed over post dated cheque dated 13.09.2008 for the aforesaid amount of Rs.50 lakhs. The respondent also handed over a cheque dated 14.06.2008 for a sum of Rs.1,76,202/- towards the interest of the aforesaid amount for the said period after deducting TDS. Prior to the due date, on 10.09.2008 the respondent again approached the petitioner seeking extension of time for repayment of the aforesaid amount by two months. A fresh PDC dated 12.11.2008 for the

principal amount i.e. Rs.50 lakhs was issued. Another cheque dated 11.09.2008 for Rs.1,17,468/- for further interest after deducting TDS was also issued. Again four days prior to the expiry of the said period, the respondent again approached the petitioner requesting for extension of time for a period of two months. A fresh cheque for the principal amount of Rs.50 lakhs dated 11.01.2009 was issued. Similarly, a cheque dated 12.11.2008 towards the interest was also issued. The same exercise was repeated on 17.01.2009 and two cheques dated 17.01.2009 and 02.04.2009 for Rs.1,54,667/- and Rs.67,544/- respectively were issued towards the interest and four PDCs were issued towards the principal amount. Out of the four PDCs, three cheques were encashed leaving a balance of Rs.15 lakhs which the respondent had requested that the said PDC be not presented. On 20.06.2009, again the respondent issued a cheque for Rs.15 lakhs dated 30.09.2009. Similarly, a cheque for the interest was also issued as issued in the past. This process appears to have gone on subsequently when finally the respondent handed over a cheque on 15.11.2010 for Rs.10 lakhs which was encashed by the petitioner leaving a balance of Rs.5 lakhs payable to the petitioner.

3. Reliance is placed on a communication dated 08.08.2012 sent by the petitioner in response to which the respondent on 04.03.2013 despatched a Confirmation of Ledger Account showing the outstanding balance as per the books of accounts of the respondent for the financial years 2009-10, 2010- 11, 2011-12, 2012-13. The last ledger account indicated the balance amount payable to the petitioner is Rs.7,29,905/- as on 31.03.2013. As the respondent continued to default, the petitioner sent a legal notice on 14.08.2015. It is pleaded that despite receipt of the legal notice, the

respondent did not respond to the legal notice or pay the dues of the petitioner.

4. The respondent have filed their reply. In the reply the respondent have denied that they despatched any balance confirmation to the petitioner. It has also been stated that the person who has allegedly signed the balance confirmation, namely, Ms. Shruti Gaur has nothing to do with the respondent Company. It has also been pleaded that the claim of the petitioner is barred by limitation. Reliance is placed on the judgment of the Division Bench of this court in Interactive Media and Communication Solution Pvt. Ltd. vs. Go Airlines Ltd. in CA No. 10/2013 dated 04.02.2013 to contend that the claim of the petition is barred by limitation.

5. I have heard learned counsel for the parties.

6. Learned counsel for the petitioner has vehemently argued that as per the transactions that have been recorded, it is manifest that the respondent had received a ICD of Rs.50 lakhs of which Rs.5 lakhs remain outstanding. As per the ledger account including interest, the respondent owes to the petitioner a sum of Rs.7,29,905/-. He also points that the legal notice that was sent by the petitioner on 14.08.2015 was duly delivered. Despite this, he submits that the respondent did not respond. He submits that the defence of the respondent is a sham.

7. Learned counsel for the respondent has reiterated that the balance confirmation relied upon by the petitioner are forged documents. He has also denied that such a document was sent by the respondent to the petitioner. He submits that the dues of the petitioner stood duly paid and that even otherwise, the claim of the petitioner is now barred by limitation as the dues claimed pertain to the period 2009-10 and the winding up petition has been

filed in 2015. He has also denied the receipt of the notice.

8. I may firstly note that the transactions which have been reproduced in the petition clearly show that a sum of Rs.50 lakhs was paid by the petitioner to the respondent as ICD. A perusal of the details of the post dated cheques as noted above shows that a sum of Rs. 45 lakhs was paid towards the principal amount to the petitioner leaving a balance of Rs.5 lakhs.

9. The bone of contention between the parties is the communication dated 04.03.2013 alleged to have been sent by the respondent to the petitioner. The covering letter is on the letter head of the respondent and the covering letter is also signed by Ms.Shruti Gaur with a stamp of the respondent duly affixed on the same. The ledger accounts including ledger account for the period 01.04.2012 till 31.03.2013 also have the stamp affixed on the statement of accounts and the initials of Ms.Shruti Gaur, showing the balance amount payable to the petitioner as Rs.7,29,905/-.

10. A perusal of the reply filed by the respondent would show that other than denying having sent this communication or having executed this communication, the respondent have not further bothered to give any further information regarding their books of accounts. In para 17 of the reply, in response to para 17 of the petition, they have simply denied having sent the ledger accounts. They have also denied that any e-mail was sent to the respondent. It has been submitted that Mr. Sandeep Kumar was the accounts head of the respondent Company and is still working and no one from the respondent side ever sent this account.

11. The document filed by the petitioner is on the letter head of the respondent duly affixed with the stamp of the respondent. If the statement of account was wrong or a forged document, the respondent would have filed

their own books of accounts showing that the statement of account which has been relied upon by the petitioner does not tally with the actual original books of account. No such steps have been taken. No attempt is made to support this plea by filing any documents which are manifestly in power and possession of the respondent. Best evidence that is available to the respondent has been hidden from the court. It is a settled law that where a relevant fact is withheld a presumption will arise against the person who has withheld it.

12. 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 MANU/PR/0053/1916 : 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 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 MANU/PR/0107/1929 : AIR 1929 PC 95 and was approved by this Court in Hiralal v. Badkulal MANU/SC/0004/1953 : 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. ...."

13. Coming to the legal notice, the petitioner has placed on record the photocopies of the postal receipts, the courier receipts and the tracking report of the courier Company-DTDC which show that the communication was served on the respondent. One cannot help coming to the conclusion that despite receipt of the above legal notice, the respondents are being evasive.

14. In my opinion, the plea raised by the respondent is not bona fide. There is no bona fide defence raised.

15. Once I conclude that the statements of accounts have been duly sent to the petitioner, it would be obvious that the plea of limitation raised by the respondent would cease to exist in view of Section 18 of the Limitation Act.

16. Section 18 of the Limitation Act reads as follows:-

"18. Effect of acknowledgment in writing.--

(1) Where, before the expiration of the prescribed period for a suit of application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.

(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received

17. It is a settled legal position of law that entries in the balance sheet of a

company extend the period of limitation under section 18 of the Limitation Act. (see Shahi Exports Pvt. Ltd. & Anr. v. CMD Buildtech Pvt. Ltd., 2013 (202) DLT 735)

18. Accordingly, the statement of accounts showing outstanding as on 31.01.2013 would extend the period of limitation inasmuch as the present winding up petition has been filed in 2015.

19. Accordingly, I admit the present petition. 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.

20. Petitioner shall deposit a sum Rs.75,000/- towards cost of the publication 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. The OL will also seize all the bank accounts of the respondent.

21. However, in the interest of justice, I suspend the aforesaid order appointing the OL as the PL for a period of four weeks. In case within four weeks from today, the respondent were to pay to the petitioner the outstanding amount payable to the petitioner as reflected in their books of accounts, namely, of Rs.7,29,905/-, the aforesaid order shall stand revoked.

22. List on 08.02.2019.

JAYANT NATH, J.

SEPTEMBER 25, 2018/rb corrected and released on 11.10.2018.