1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.99 OF 1997 Maharashtra State Financial Corporation ....Petitioner V/s. Supplementary Foods (India) Ltd. ....Respondent Ms.Manorame Mohanty with Ms.Gayatri Sharma i/b S.K. Srivastava & Co. for the Petitioner. Mr.V. Mannadiar i/b M/s.Mannadiar & Co. for the Respondent. CORAM : S.J. VAZIFDAR, J. DATE : 8TH JUNE, 2010. P.C. :- 1. This is a Petition for winding up of the Respondent Company on the ground that it is unable to pay its debts. According to the Petitioner, the company was liable to pay it a sum of Rs.77,20,517/- as on the date of filing of the Petition. 2. The claim arises in respect of two bills of exchange discounted by the Petitioner. The two bills of exchange are in the sum of Rs. 31,59,550/- and Rs.28,48,000/- respectively. 3. By a letter dated 6.10.1995 signed by one Ajit Kumar Prasad, the then Managing Director of the company, the Petitioner was requested to discount the said two bills of exchange at 21% interest by paying the amounts thereof to the drawer of the bills of exchange. The drawer of the first bill of exchange was M/s.Supratic Dyes Pvt. Ltd. The drawer of the 2 second bill of exchange was M/s.Bimago Overseas Pvt. Ltd. The letter certified and confirmed that the company had received the goods and material covered by the said bills of exchange in order and to the satisfaction of the company. It also certified and confirmed that the bills of exchange were accepted by the consignor namely said Ajit Kumar Prasad. Thus the application for discounting the said bills of exchange was signed by Ajit Kumar Prasad, the then Managing Director of the company. Further the bills of exchange were accepted by the said Ajit Kumar Prasad on behalf of the company. 4. The first defence that was taken across the bar was that the bills of exchange and the application was fraudulent. It was suggested that the signature of the said Ajit Kumar Prasad was denied. 5. This contention however was taken orally at the time of the argument. The company has filed several affidavits. Nowhere has the company or the said Ajit Kumar Prasad denied the fact that he had not signed the said letter dated 6.10.1995 applying for the bills of exchange to be discounted. What is even more important is the fact that in the affidavit in re-joinder, these documents were expressly referred to. Moreover, the affidavit in re-joinder expressly stated that the said documents had been signed by the said Ajit Kumar Prasad. No sur-rejoinder was filed. There are no averments denying the execution of the documents by the Managing Director. In the circumstances, it is not possible to accept the contention which has been taken only at the time of arguments. 6. It was then submitted that the transactions noted in the bills of exchange were fraudulent. It was in fact contended that there were no such 3 transactions. The bills of exchange state that the same had been drawn in connection with the sale of raw salt, and refer to the receipt of the delivery challans and invoices, the particulars whereof were stated therein. Several allegations have been made against the erstwhile Director one Vikas Makharia. 7. However apart from certain bare/bald averments, there is nothing on record which indicates any fraud on the part of the Petitioner or its officers in the entire transaction. I will assume that the said Vikas Makharia has played a fraud on the company. That however would not absolve the company of its liabilities towards the Petitioner. Admittedly the Petitioner had made payment/discounted the bills, as requested. It is not open therefore for the company to dispute its liability qua the Petitioner. 8. The first affidavit in reply is dated 12.9.2007. This affidavit was affirmed by the said Managing Director viz. Ajit Kumar Prasad. He stated that the said bills were not discounted at the request of the company ; that the company did not have any bill discounting facility with the Petitioner ; the transaction was not as per any board resolution and that the said Vikas Makharia had no authority to deal with the Petitioner. 9. The mere fact that it is also stated that the transactions are sham and bogus does not carry the Petitioner’s case any further. There are no particulars as to how the transaction is sham and bogus, the Petitioner’s dues cannot be affected thereby as the Petitioner was not a party to such sham and bogus transaction. 10. The statements of the Petitioner’s officers relied upon by the 4 company, also do not indicate any fraud on the Petitioner’s part. It would at the highest indicate the alleged fraud of the directors of the company. The Petitioner not having been a party to the said fraud, cannot be affected thereby. The statements are dated 23.7.2004 and 25.8.2004.The Petitioner had stated that the company had availed of the said facility for the apparent purpose of paying its dues to the drawer, whereas in fact the said amount was subsequently diverted back to the company and siphoned out thereafter. I fail to see how the Petitioner can be prejudiced for such acts of the drawer and acceptor. 11. This leaves for consideration a technical argument on behalf of the company to the effect that the said Ajit Kumar Prasad had no authority to apply for the bill discounting facility and to accept the said bills. Firstly, it must be noted that it is the same gentleman who is instructing the company’s advocate in Court. As stated above, he has not denied his signature accepting the said bills of exchange. He has not denied the fact that he has signed the said letter dated 6.10.1995 applying for a bill discounting facility. This was despite the fact that it was so stated expressly in the affidavit in rejoinder. It does not lie in his mouth therefore to contend that he had no authority to do so. 12. Even otherwise I am not inclined to accept the submission. This argument had not been raised in the affidavits in reply. It would be unfair to the Petitioner to reject an otherwise justified claim on this ground when it was not pleaded. 13. Indeed, this argument constitutes an admission not against the company but as against the said Ajit Kumar Prasad that he wrongly and 5 illegally availed of the bill discounting facility and induced the Petitioner to part with the large sums of money thereby. Prima-facie, therefore, the said Ajit Kumar Prasad would also be personally liable in respect of the said amounts not merely to the Petitioner but to the company itself. This however is an important fact which will be decided only in an appropriate proceedings. 14. In the circumstances, there is no defence to the Petitioner’s claim. The Petition is made absolute in terms of prayers (a) and (b). The operation of this order is stayed upto and including 31.7.2010 to enable the company to challenge the same. However, in the meantime the company and its directors shall not dispose of, alienate, encumber, part with possession of or create any third party right, title and/or interest in, to, upon or in respect of any of its properties, movable and immovable, except for the payment of wages and salaries of its staff members after intimating the Official Liquidator at least ten days in advance in writing.