1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi COMPANY PETITION NO. 13 OF 2009. In the matter of M/s. Pradeep Shetye Pvt. Ltd. Manish Talathi. ..Petitioner. .... Mr. Chandrashekar, i/b. M/s. Bekay Legal, for Petitioner. Ms. Deepa Kamath, for Respondents. .... CORAM : S.J. KATHAWALLA, J. DATE : 18TH FEBRUARY 2010. P.C. By this company petition, the petitioner has sought winding up of the respondent company M/s. Pradeep Shetye Private Limited (Company). The petitioner is the proprietor of M/s. Rachana International, doing business of supply of chemicals. According to the petitioner, the petitioner supplied and delivered chemicals to the company as per the purchase orders placed by them from time to time and under various invoices. The company received the material without any demur or protest as regards the quality, quantity and price thereof and also commercially utilized the same. The company 2 as and by way of part payment issued eleven cheques to the petitioner, all dated 5th September 2008 aggregating to Rs. 10,68,910/-. According to the petitioner, when the said eleven cheques (particulars of which are set out in paragraph 7 of the petition) were presented for encashment, the same were dishonoured and were unpaid for the reason "funds insufficient". According to the petitioner, the petitioner through his Advocates M/s. Bekay Legal issued notice dated 7th October 2008 under sections 433 and 434 of the Companies Act, 1956, to the company and called upon the company to pay an amount of Rs.10,68,910/- within 21 days from the date of the receipt of the notice, failing which the petitioner would be constrained to file a winding up petition against the company. According to the petitioner, despite receipt of the notice, the company failed and neglected to pay the said amount. The petitioner therefore, filed the company petition on 6th December 2008. 2. The petitioner has categorically stated in paragraph 12 of the petition that the company has failed and neglected to reply to the statutory notice issued by the petitioner. Hence, there is no bonafide dispute or defence as to the amount due 3 and payable by the company to the petitioner. The petition therefore, deserves to be admitted. 3 . On the basis of the above facts set out in the petition, the petitioner on 19th March 2009 obtained an order from this Court [Coram : S.J. Vazifdar, J.], whereunder the company was directed to pay a sum of Rs.10,68,910/- within twelve weeks from the date of being served with a copy of the order by the petitioner. In the event of failure on the part of the company to pay the said amount, the petition was directed to stand admitted and to be advertised, as set out in the said order. The said order was passed on the basis of the representation made to the Court by the petitioner that the company has not replied to the statutory notice and there is no affidavit-in-reply filed by the company. This Court in its order dated 19th March 2009 therefore, recorded : "There is no reply to the statutory notice. There is no affidavit in reply. There is no defence to the petitioners' claim." 4. Thereafter, upon receiving the order passed by this Court dated 19th March 2009, the company took out a company application being no.497 of 2009 seeking recall of the order passed by this Court dated 19th March 2009 on the ground 4 that the contents of the statutory notice dated 7th October 2008 was denied/ disputed by the company by its reply to the statutory notice dated 27th October 2008. The said reply was received by the Advocate for the petitioner on 30th October 2008. Though the petition was filed only on 6th December 2008, the petitioner wrongly contended therein that no reply to the statutory notice was received by the petitioner and/or their Advocates to the said statutory notice. The company in its application further pointed out that the petitioner had not served the company petition on the company and therefore, the company was not aware that the company petition was listed on board on 19th March 2009 or prior thereto and the company could not remain present before this Court. 5. Though the said company application seeking recall of the order dated 19th March 2009 was served by the company on the petitioner, the petitioner chose not to file any reply and to remain absent. Therefore, by an order dated 12th August 2009, this Court recalled the earlier order dated 19th March 2009 and placed the company petition for directions before this Court on 14th August 2009. On 14th August 2009, this Court was informed by the company that though the petition is filed 5 by the petitioner on 6th December 2008, the petitioner has not served a copy of the petition on the company till date. The company petition was therefore, dismissed for want of prosecution. The petitioner thereafter, took out a company application being no. 1239 of 2009 for restoration of the said company petition on the ground that the Advocate who was handling the matter in the legal firm, left the said firm a month ago and he had failed to inform the petitioner as well as the Advocates for the petitioner, that the petition was dismissed on 14th August 2009. The said petition was restored by an order dated 14th January 2010 upon payment of costs of Rs.10,000/- by the petitioner to the respondent. 6. Under the circumstances, the fact remains that the petitioner has suppressed in the petition that his Advocates on 30th October 2008 had received a reply dated 27th October 2008 to the statutory notice dated 7th October 2008, denying and disputing the claim of the petitioner. Though the company petition was filed through the very same Advocates on 6th December 2008, a false statement was made in the petition that the company has not replied to the statutory notice and has therefore, not disputed the claim of the petitioner. In fact, in 6 the reply to the statutory notice, the company had unequivocally denied their liability to make any payment to the petitioner and had categorically pointed out that they have not issued the cheques bearing the respective dates and the petitioner has misused old instruments issued to him by the company for which payment was already made by the company. Inspection was also sought by the company from the Advocate for the petitioner of the said instruments at the Office of the petitioner’s Advocates at the time and date of their convenience, which was not responded to by the petitioner and/or his Advocate. 7. Without responding to the said demand for inspection, the petitioner filed the above company petition by suppressing the said reply to the statutory notice and making false statements on oath knowing the same to be false. As if this was not enough, the petitioner on a false representation obtained orders from this Court against the company on 19th March 2009 by informing the Court that no reply was received to the statutory notice and that no affidavit in reply has been filed by the company despite service of the company petition. It was thereafter, revealed that even service of the company 7 petition was not affected on the company. Till date, there is not a single affidavit filed by the petitioner explaining this dishonest conduct on its part and conveniently, the petitioner and his Advocate remained absent when the company application taken out by the company was heard and by an order dated 12th August 2009, the order dated 19th March 2009 passed against the company on a mis-representation made by the petitioner was recalled. The petition therefore, deserves to be dismissed on the ground of suppressing the correct facts from this Court, making false representations in the pleadings and before the Court and obtaining orders from the Court against the company on the basis of such suppression and false representations. 8. Even otherwise, according to the petitioner, the petitioner has supplied and delivered chemicals to the company as per the orders placed by the company from time to time and on the basis of the various invoices raised by the petitioner. It is contended by the petitioner that the company as and by way of part payment, issued eleven cheques aggregating to Rs. 10,68,910/- as set out in paragraph 7 of the petition. However, the petitioner has not annexed a single purchase order or a single invoice in respect of which the company by way of part 8 payment had issued the purported cheques. 9. According to the petitioner, all the cheques were issued on 5th September 2008. It is contended by the company that the said cheques were given to the petitioner in the years 2003-2004, 2005-06. It is submitted by the company that they had immediately pointed out the dishonesty on the part of the petitioner in their reply dated 27th October 2008 to the statutory notice dated 20th October 2008, and therefore, they have not come up with this defence as an afterthought. In fact, they had immediately sought inspection of the cheques allegedly dated 5th September 2008 from the Advocate for the petition. The petitioner without giving inspection as sought, filed the above company petition and has suppressed the entire reply of the company therefrom. In support of its contention that the cheques were issued during the years 2004 to 2006, the company has relied upon its old cheque books and have also by Exhibits ‘C’ and ‘C-1’ to their affidavit in reply pointed out that the cheques starting with the 811 series and 8111 series were issued by the company to different parties and cleared in the years 2005-2006. It is further pointed by the company, that after taking inspection on 16th January 2010 of all original 9 cheques, it is found that the dates on all the original cheques are in black ink and even the handwriting is different, whereas, the name and amount on the cheques is written in blue ink, which shows that the company has dishonestly contended that the cheques were issued to him by the company on 5th September 2008. It is also pointed out that the ledger account handed over by the petitioner nowhere shows that an amount of Rs.10,68,910/- is due to the petitioner from he company in any accounting year. It is contended by the company that the petitioner has received the entire payment but has wrongly not returned the undated cheques to the company and has tried to dishonestly make a false claim against the company by using the undated cheques issued to him by the company. It is submitted that the petitioner is well aware that if he had filed a suit for accounts, it would have been established beyond any doubt that not a single paisa is due and payable by the company to the petitioner at the foot of the account. It is submitted that the petitioner has therefore, filed a winding up petition and has left no stone unturned in making false and dishonest statements therein. 10. In my view, it is prima-facie established that the 10 cheques were issued by the company in the years 2005-2006, but the petitioner has filled in the dates as 5th September 2008 and made out a false case in this petition that the cheques were issued to him by the company on 5th September 2008. The dispute between the parties relates purely to accounts. Therefore, apart from the fact that the petitioner has approached this Court by suppressing the true and correct facts in the matter and obtained orders against the company through suppression and mis-representation, the company has raised substantial and bonafide defence to the above company petition and the company petition deserves to be rejected. 11. The company petition is therefore, rejected. [ S.J. KATHAWALLA, J. ]