Madras High Court
M/S.Southern Petrochemical ... vs M/S.Bajaj Electricals Limited on 19 November, 2021
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 19.11.2021
CORAM
THE HONOURABLE MR. JUSTICE PARESH UPADHYAY
AND
THE HONOURABLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
O.S.A.Nos.320 and 321 of 2021
& CMP No.18826 and 18828 of 2021
M/s.Southern Petrochemical Industries
Corporation Ltd.,
A Company incorporated under the
Companies Act, 1956
Having its Registered Office at
SPIC House, No.88, Mount Road,
Guindy, Chennai – 600 032. .. Appellant in
both O.S.As
Vs
M/s.Bajaj Electricals Limited,
A Company incorporated under the
Companies Act, 1956,
Having its Registered Office at
No.45/47, Veer Nariman Road,
Mumbai – 400 001
rep. By its POA & General Manager,
Sales Support (South) Office at
103, Nelson Manickam Road,
Aminjikarai, Chennai – 23. ..Respondent in
both O.S.As
Appeals filed under Order XXXVI Rule 1 of O.S. Rules read with
Clause 15 of the Letters Patent against the order dated 08.10.2021 in
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Company Application Nos.50 and 49 of 2021 in Company Petition
No.298 of 2014.
For Appellant : Mr.AR.L.Sundaresan
for Ms.AL.Ganthimathi
in both O.S.As
For Respondent : Mr.Thriyambak J. Kannan
in both O.S.As
COMMON JUDGMENT
(Delivered by PARESH UPADHYAY, J.)
Challenge in these appeals is made to the common order passed
by the learned single Judge dated 08 October 2021 recorded on
Company Application Nos.49 and 50 of 2021 in Company Petition
No.298 of 2014. This appeal is by the original respondent.
2. By the impugned order, learned single Judge has given the
following directions:
“18.Therefore, (i) Application No.49 of 2021
is allowed. The respondent is directed to produce
the schedule mentioned documents within a
period of 14 days from the date of receipt of a
copy of this order.
(ii)Application No.50 of 2021 is allowed. The
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respondent is directed to answer the
interrogatories enlisted in the company application
No.50 of 2021 within a period of 14 days from the
date of receipt of a copy of this order.
Call the matter on 09.11.2021 for further
proceedings.”
3.1. Learned senior advocate for the appellant has submitted
that the impugned order is unsustainable. It is submitted that, what is
ordered by learned single Judge could be done only while adjudicating
full-fledged civil suit and it could not have been ordered to take call
whether the petition needs to be tried or not. It is further submitted
that it was for the respondent (original petitioner) to make his case
good and the burden could not have been shifted on the present
appellant, which learned single Judge has done by the impugned order.
It is submitted that the direction to the appellant to place on record
certain material, would in substance strengthen the case of the original
petitioner, at the cost of the present appellant.
3.2. Without prejudice to the above, it is submitted that the
claims of the present respondent were barred by limitation and the
denial by the present appellant could not be termed to be a bald
denial. It was for the present respondent to put complete facts before
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the Court and the present appellant could not have been directed to
point out how the case of the present respondent is not proper.
3.3. Learned senior advocate for the appellant has further
submitted that the documents which are ordered to be produced are
not available with the appellant, because the concerned division is
transferred to some other person/ entity.
3.4. It is submitted that these appeals be entertained and
impugned order be interfered with.
4.1. On the other hand, learned advocate for the respondent
(applicants in C.A.Nos.49 and 50 of 2021 in C.P.No.298 of 2014) has
opposed these appeals, while supporting the impugned order of
learned single Judge. It is submitted that, innocuous directions are
issued by learned Single Judge and the very fact that the respondent
in the company petition has filed these appeals, that itself would show
that the dispute raised on his behalf before learned single Judge was
not genuine /bonafide and therefore that aspect be also taken into
consideration.
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4.2. Learned advocate for the respondent has also taken this
Court through the letters exchanged by the parties to contend that the
appellant cannot be permitted to contend that the division in question
has been transferred but whether the debt is transferred or not, that is
for the respondent (original petitioner) to put on record and the Court
could not have issued any direction in that regard. It is submitted that
what is asked for by the present respondent and what is ordered by
learned single Judge are the documents, some of which can be in the
possession of the present appellant only and therefore no interference
be made by this Court. It is submitted that these appeals be
dismissed.
4.3. On behalf of the respondent grievance is also made that
though the impugned order is dated 08 October 2021 and the
directions were to be complied with within two weeks, challenge is
made at this bleated stage to frustrate the order. It is submitted that
on this additional ground also, no interference be made by this Court.
5. The argument against the present appellant as noted in para
4.3 is rejected. We do not find that, the time taken by the present
appellant, more particularly in the weather which this State had
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suffered in last few weeks, should weigh against the appellant. These
appeals need to be considered on merits.
6. Having heard the learned advocates for the respective parties
and having considered the material on record, this Court finds as
under:
6.1. The Company Petition is of the year 2014. In the pending
petition, the petitioner moved applications being C.A.Nos.49 and 50 of
2021, on which the impugned order is passed.
6.2. The contentions of learned senior advocate for the appellant
need to be considered keeping in view his argument that the present
appellant is not in a position to comply with the directions of learned
single Judge, because the division in question of the company has
already been transferred to some other person/ entity. This submission
itself would tilt balance against the appellant. The very fact that, the
enquiry by learned single Judge in that regard is sought to be dodged,
that itself is the ground why that information need to be on record. At
this stage, the reasoning in the impugned order, more particularly, in
paragraphs 15, 16 and 17 need to be kept in view. In substance, it is
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to the effect that, if the debt is bonafidely disputed, the Court will not
wind up the company. Contrarily, if the dispute raised by the present
appellant lacks bonafide, the Court will not accept such defence. The
challenge to the impugned order would only tilt the balance against the
appellant about his denial being bonafide. The appellant can not be
heard to contend that the documents which are ordered to be
produced are not available with the appellant, because the concerned
division is transferred by it to some other person/ entity but the same
need to be produced by the original petitioner to make his case good.
We find that the impugned order, in this background can not be
interfered with.
6.3. The above would further lead to a situation where, the Court
may be required to record finding to the effect that, the dispute raised
by the present appellant is less likely to turn out to be bonafide. While
recording this, we make it clear that these observations are made only
for the limited purpose of taking appropriate call, whether any
interference in these appeals is required or not. Final decision in that
regard will be taken by learned single Judge, on its own merits, on the
basis of the material that may come on record pursuant to the
impugned order.
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7. Though learned senior advocate for the appellant has raised
other contentions on merits as well, if those contentions are gone into,
it may cause prejudice to the appellant and therefore, at the request of
learned senior advocate for the appellant, those contentions are not
answered in these appeals, leaving it open to the parties to agitate
before learned single Judge.
8. Since the time limit prescribed in the impugned order has
already passed and further since we are not interfering in the
impugned order, any request that may be made on behalf of the
appellant before learned single Judge with regard to extension of time
for compliance of the impugned order, it may be considered by learned
single Judge, on its own merits.
9. These appeals are dismissed, with above observations. No
costs. Consequently, connected miscellaneous petitions are closed.
(P.U.J.,) (S.S.K.J.,)
19.11.2021
Index: Yes/No
mmi/1
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To
The Sub Assistant Registrar,
Original Side, High Court, Madras.
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PARESH UPADHYAY, J.
AND
SATHI KUMAR SUKUMARA KURUP, J.
mmi
O.S.A.Nos.320 and 321 of 2021
19.11.2021
https://www.mhc.tn.gov.in/judis
