1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH COMPANY PETITION NO. 3 OF 2004 M/s. Nootan Agencies, Tilak Statue, Mahal, Nagpur, a partnership firm registered under Partnership Act. ... PETITIONER Versus 1. M/s. Nav Bharat Press (Bhopal) Private Limited, registered office at Nav Bharat Bhavan, Cotton Market, Nagpur. 2. M/s. Nav Bharat Press (Bhopal) Private Limited, Press Complex, MP Nagar, Bhopal (Administrative Office). ... RESPONDENTS Shri Ramesh Darda, Advocate for the appellant. Shri A.S. Jaiswal, Advocate for the respondents. ..... CORAM : B.P. DHARMADHIKARI, J. DATE OF RESERVING THE ORDER : APRIL 03, 2008. DATE OF PROUNCING THE ORDER : APRIL , 2008. ORDER : A finding that present Respondent is indebted to present Applicant for sum of more than Rs. One lakh is already reached by me in order dated 01/02/2008. Different figures of 2 liability projected by Respondent and change in its stand is also noticed. At that stage in view of the fact that Respondent is a going concern, no final orders about winding up were passed and matter was adjourned by asking Applicant to publish advertisement of this matter. Accordingly, advertisement was issued by Applicant. This order dated 1st February 2008 was questioned before Division Bench in Company Appeal and both learned Counsel informed that claims of creditors received in response to such advertisement should not be considered by Company Judge. Rest of the order of this Court was, therefore, maintained. These developments are noticed by me in order dated 29/2/2008. 2. Respondent refused to advance further oral arguments and relied upon written notes placed on record on 23/11/2006. Relevance of those written notes qua a finding recorded on 1/2/2008 or bearing thereof on such findings has not been pointed out. However thereafter again Respondent took time to submit offer for compromise to Applicant and in the 3 process killed time till 3/4/2008. In this respect order dated 19/3/2008 passed by this Court shows the attitude and conduct of Respondent. Mutually inconsistent stands were taken only to gain the time and to avoid any court orders in the matter. 3. It is settled law that these proceedings are not substitute for Civil Suit wherein disputed accounts can be resolved in the light of evidence adduced. Here it is necessary to find out whether debt in accordance with limit prescribed in Section 434 is outstanding or not. Here job is made easier by Respondent by filing pursis dated 18/1/2006 in Company Appeal No. 6 of 2005 (copy available in present records) where liability to the extent of Rs.1,90,916.01/- is accepted as balance payable and offer was made to pay it. Interesting part of this pursis is instead of adding the amount of dishonoured cheques to the balance payable, it is sought to be deducted from it. Chartered Accountant of Respondent has shown balance payable by Respondent to Applicant as Rs.14,55,024.99/-. In very same pursis it is further added that if Applicant removes Nagpur group 4 liability & if Respondent removes credit given for dishonoured cheques, net payable amount by Nav Bharat to Nootan works out to Rs.1,08,606.01/- approx. Reply of Respondent dated 27/9/2004 filed through Stamp No. 8801/2004 clearly shows that 14 cheques issued for Rs.15,53,795/- are different than the dishonoured cheques, all according to Respondent post dated & worth Rs.16,00,474/-. On the contrary, this militates with alleged objection to adjustment made by Applicant. It is difficult to accept story of such huge advance payment by Respondent. I find that Respondent never had any bonafide defence to make and has only developed its defences on ad-hoc basis to create confusion and to continue with its affairs. This is also apparent from way and manner in which matter was dealt with even before this Court, ultimately choosing to rely on old written notes filed about 3 years back. 4. In written notes there is reference to alleged unauthorised adjustment of Rs.15,53,795.00/- by Applicant. It is sought to be contended that liability of other groups/ 5 establishments like Pune and Mumbai editions was extinguished arbitrarily because of funds advanced by Respondent. The stand is obviously false as it is not borne out from any accounts of Respondent. The exercise of crediting the account of applicant with amount of dishonoured cheques considered in order dated 1/2/2008 by me and the story of advance payment of Respondent, all show lack of bona fides and also lack of respect for judicial process. Similar misleading effort is also undertaken with reference to ledger accounts produced by Applicant in paragraph 23 of the written notes. It is to be noted that no explanation whatsoever is being furnished in relation to dishonoured cheques and why they are taken into account, if amount thereof was tendered in advance i.e. towards future supplies. It is only being alleged that as dishonoured cheques are still in custody of Respondent, credit entered therefor has not been reversed. 5. Same thing can be said even in relation to claim of interest at 21 percent by Applicant. In paragraph 16 of written 6 notes it is stated that such a claim is mentioned in some of the bills filed along with affidavit dated 17/11/2006 by Applicant. It is being stated that there appears to be tampering in these bills and signature of Applicant on it are different. It is contended that had there been a contract between parties for payment of interest at 21 percent, the petitioner would have definitely debited the ledger account of Respondent in its books. Production of original bills which are in custody of Respondent by it would have been the safest way out. However, bills in original are not produced by Respondent to show any tampering particularly when receipt of material as per those bills is not being disputed. 6. I therefore do not find anything in these written notes of argument to depart from findings already reached. The Applicant - Company has shown that amount as demanded by it vide statutory notice has not been paid within statutory period in absence of any bonafide dispute concerning it. Even otherwise said finding is now become final. In response to advertisement, no creditor has objected to the winding up of Respondent. In 7 these circumstances, I find that ingredients of Section 433 and 434 of Companies Act are satisfied and hence I proceed to pass following order u/S 443 thereof: -- 1) Petition is admitted for winding up. Respondent Company is ordered to be wound up under Chapter II of Companies Act,1956. 2) Official Liquidator attached to this Court is appointed as Liquidator to act as such to undertake the process of winding up of Respondent Company. 3) Cost payable by Respondent to Petitioner / Applicant are worked out at Rs.30,000/- which Applicant is entitled to receive along with its other dues as per law. 4) Registry of this Court to comply with S. 444. JUDGE ******* *GS. 8 LATER ON Shri Padhye, Advocate holding for Shri Jaiswal, Advocate, for the respondents seeks suspension of this order for a period of six weeks so as to enable the respondents to proceed further in the matter. Shri Darda, Advocate appearing for the petitioner has no objection to grant of reasonable time. In the circumstances and considering vacation, which is starting soon, the present order is suspended till 9th June 2008. JUDGE ******* *GS.