Donv And Limited vs Mykind Vacations Private Limited
2019 Latest Caselaw 902 Del

$~CP-15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of Decision: 13.02.2019

+     CO.PET. 218/2014

      DONV AND LIMITED                                   ..... Petitioner
                   Through:            Mr. Mayank Wadhwa, Mr. Peeush
                                       Sharma, Mr. Bharvi Thakur & Ms.
                                       Kritika Nagpal, Advocates
                         versus

      MYKIND VACATIONS PRIVATE LIMITED        ..... Respondent
                  Through: Mr. Shyam Moorjhani, Mr. Sidharth
                           Joshi, Mr. Tanya Joshi & Mr. Ankit
                           Jalal, Advocates

      CORAM:
      HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J. (Oral)

1. This petition is filed under Section 433(e) read with Section 434 and 439 of the Companies Act, 1956(hereinafter referred to as „the Company Act‟) for winding up of the respondent company.

2. The brief facts of the case are that the petitioner started business with the respondent in 2010 vide Sale Agreement dated 1.1.2010. It is stated that an account was provided to the respondent to make the bookings for final customers. The said agreement was to continue until 31 st March, 2011. The parties entered into a FIT Sales Agreement on 25.11.2011. It is also pleaded that from December 2012 to September 2013, the respondent availed the services of the petitioner by making various bookings which were duly

honoured by the petitioner. The invoices were raised for each and every booking by the respondent on the petitioner. Respondent was provided 30 days to clear the invoices, however, respondent took an average period of 90 days to clear the invoices. In October 2013, the petitioner raised a demand for outstanding amount of Euro 146790 being a sum of Rs. 1,21,83,570/- as on 27.03.2014. This demand was raised by letter dated 01.10.2013. It is stated that on 08.10.2013, the respondent replied admitting the dues. As payments were not made by the respondent, demand was raised by letter dated 21.11.2013. Finally, on 02.01.2014, statutory notice under the Companies Act was sent.

3. This Court on 29.01.2019 had noted the plea of the petitioner as follows:

"1. This petition is filed under sections 433(e), 434 and 439(1)(B) of the Companies Act, 1956 (hereinafter referred to as 'the Act') for winding up of the respondent company.

2. The case of the petitioner is that he started business with the respondent in the year 2010 vide sales agreement for wholesale clients dated 01.01.2010 and an account was provided to the respondent to make the bookings for final customers. The parties entered into a FIT Sales Agreement dated 25.11.2011. It is pleaded that from December, 2012 to September, 2013 the respondent availed the services of the petitioner by making various bookings which were duly honoured by the petitioner. The invoices were raised for each and every booking made by the respondent upon the petitioner. The respondent was provided 30 days to clear the invoices, however, the respondent took an average period of ninety days to clear the invoices. On 01.10.2013, the petitioner raised a demand for payment of outstanding amount of Euro146790 (approx. Rs.l,21,83,5701-). It is pleaded that the respondent replied vide its letter dated 08.10.2013 wherein admissions were made by the respondent.

Notice was finally sent on 02.01.2014.

3. The learned counsel for the petitioner has taken me through the correspondences exchanged between the parties. Reliance is placed on communication dated 29.08.2013. A reminder was also sent stating that payment of Euro 154000 be cleared before 31st August at any cost. A response was received also from the respondent stating that the schedule of payment provided by the employee of the respondent company looks fine provided that the petitioner will get all the payments before 15th September, 2013. Similarly, reliance is also placed on the communication dated 29.08.2013 sent by the petitioner to the respondent. The correspondences continued over a period of time. ........."

4. I have heard learned counsel for the parties. The learned counsel for the respondent has today tried to submit that there is no ground made out for winding up of the respondent company. He has taken me to the email where complaints have been raised by the respondent against the petitioner. He further states that there is no relevant document on record to show as to how the petitioner is asking for a fantastic sum of Euro 146790.

5. Learned counsel for the petitioner placed reliance on an email dated 22.08.2013 sent by the petitioner to the respondent stating that outstandings are over and above 60 days. In response, the respondent has replied that they will ask Sandeep to clear the May outstanding by tomorrow. Request was made to ask GTA London to be patient. It is pleaded that this type of communication continued throughout and at no stage, has the respondent denied their liability to pay.

6. Learned counsel for the petitioner has also taken me through the reply. He has specifically relied upon para 30 of the reply where the respondent has denied any demand of any outstanding amount. It is also

stated that a false claim of Euro 146790 is being raised on the respondent. It is also pointed out that a Bank Guarantee has been encashed. Based on the said averments, a calculation is given whereby the respondent admits an outstanding due of only a sum of Rs. 24,04,497/-. This has now been amended to Rs. 27,30,091/-. It is pleaded that these calculations are based on currency rates. Hence, it is pleaded that this is an admitted due.

7. A perusal of the correspondences would show that admittedly, there are no specific denials about the payment sought for by the petitioner. However, payment was not forthcoming even after emails/reminders being sent on a continuous basis. But a perusal of the emails do not lead to a conclusion that the respondent acknowledged the outstanding liability of Euro 146790. No doubt, some issues have been discussed in the emails. But based on these correspondences, the exact outstanding amount cannot be determined. The only demand for which the respondent admits its liability is the sum of Rs. 27,30,091/-. Learned counsel for the respondent states that he is willing to pay the said amount provided the petitioners closes the issue. Keeping in view the claim of the petitioner, in my opinion, the respondent should pay the sum of Rs. 27,30,091/-. This amount would be without prejudice to the rights and contentions of the parties. The petitioner would be free to take steps for recovery of any other outstanding dues, if he so thinks appropriate.

8. Clearly, the respondent has failed to raise a bona fide dispute qua the admitted sum of Rs. 27,30,091/-.Reference in this context 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 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."

9. 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.

10. 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.

11. The aforesaid order is, however, suspended for a period of 8 weeks to enable the respondent to deposit the said sum of Rs. 27,30,091 in Court. In case, the said payment is made within eight weeks, the aforesaid order regarding appointment of Official Liquidator as Provisional Liquidator shall stand recalled.

12. List on 27th May, 2019.

JAYANT NATH, J FEBRUARY 13, 2019/rd Corrected & Released on 26-02-2019.