IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION Company Petition No. 908 of 2007 In the matter of winding up of M/s D.Dahyabhai and Co. Pvt.Ltd. Western Express Industries Ltd. ..Petitioner Mr.J.K.Hegade with Mr.D.R.Sawant and Mr.P.G.Sawant for petitioner. Mr.A.Krishnan Manmadhan for respondent. CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI CORAM: S.C.DHARMADHIKARI J. J. J. 11th July 2008 11th July 2008 11th July 2008 P.C. P.C. P.C. 1. Heard both sides. Perused the petition and annexures thereto so also the affidavits on record. 2. The petition proceeds on the basis that presumption against the respondent company under section 434(1) of the Companies Act be raised because under the leave and licence agreement entered into between the petitioner and respondent the premises more particularly described in the agreement dated 23rd August, 2004 were to be handed over as a licensee to the petitioner by the respondent/licensor. The statutory notice itself proceeds on the basis that a representation was given that the premises in question stand in the name of one Techno Prints (India) Ltd. The respondent has purchased the said property under the agreement dated 28th February, 2004 and, therefore, the respondent as a licensor can execute the leave and licence agreement. 3. The petitioner claims to have made the payment of Rs.48,63,647/- with the undertaking that the company will obtain necessary clearance from the Government authorities and enable the petitioner to commence manufacturing activities. It is on that basis that the petitioner entered the premises. However, the necessary clearance and no objection from the authorities including CIDCO were not obtained and that is how the sum which is paid under the agreement cannot be retained. The petitioner has stated that it is not interested in retaining the possession of the premises but the respondent must return the sums which are due and payable. No reply was given to the statutory notice and that is how present petition is filed. 4. The respondent company has filed a reply and has stated that the petitioner approached them and introduced themselves as manufacturers and exporters of cigarettes. They were carrying on business in tobacco products from the premises which are more particularly described in para 7 of the affidavit in reply. The petitioner had executed the leave and licence agreement with M/s Techno Prints which are predecessor in title of the respondent. The representations that are given to the respondents are set out in paras 7 and 8 of the reply. Thus, it is a case of the respondents that the petitioner claims to be a group company of the GTC Industries Ltd. The petitioner had represented to the respondent that M/s Techno Prints was the then licensor. It was indebted to Syndicate Bank. Syndicate Bank had created a charge on the entire premises. Techno Prints defaulted in payment of sums due to Syndicate Bank. Therefore, it was apprehended that Syndicate Bank would take over the possession and sell the premises to recover its dues. It is at that stage that the petitioner rushed to the respondent and discussions were held. The respondent deposited a sum of Rs.97,25,000/- with SyndicateBank. The late Director of the respondent had corresponded with Syndicate Bank and Techno Prints. It is thereafter that the leave and licence agreement and other developments took place. The respondent claimed that they had purchased the premises. The sale deed dated 12th August, 2004 is executed for a sum of Rs.2,31,00,347/- In such circumstances an assertion of the petitioner about the execution of the agreement is admitted but the petitioner is habitual defaulter in payment of licence fee and default is worked out to Rs.1,07,73,399/- It is in such circumstances that the notices were issued by the respondent and ultimately it filed a suit being Special Suit No.651 of 2007 before the Civil Judge, Sr.Dn. Vasai for possession and payment of arrears of licence fees and mesne profits. 5. The petitioner has denied all these allegations.It has filed a rejoinder affidavit. It does not dispute that today it is in possession of the premises. They purport to deny the arrangement with regard to dues of Syndicate Bank and Techno Prints. The petitioner on the other hand blame the respondent for not being able to get necessary permission and clearance. In such circumstances, they claim the amount and are stating on affidavit that if the respondents pay the amount the petitioner would vacate the premisses forthwith. Both sides are alleging breach of their respective obligations either under the leave and licence agreement and/or otherwise. 6. On perusal of the entire material, it is apparent to me that the petition filed in this Court for winding up cannot be a remedy of the petitioner. The contentious issues raised by the parties are subject matter of the pending suit. It would not be fair, just and proper to entertain this petition. As to whether the leave and licence agreement speaks of any obligations on the part of the respondent and their failure to discharge them or whether the petitioner could be said to be defaulter and, therefore, liable to make good the amount claimed herein are matters which can be gone into in the pending civil suit. It is not as if the petitioner is without any remedy. Either it can initiate its own proceedings or file a counter claim while defending the suit instituted by the respondent and raise all pleas so also claim such reliefs as are permissible in law. However, in the peculiar facts of this case winding up petition is not the remedy of the petitioner. For all these reasons the company petition is dismissed. However, it is clarified that no opinion is expressed on the rival contentions and competent court to dispose of the proceedings on its own merits and in accordance with law without being influenced by the present order. The company petition is dismissed. No costs. (S.C.HARMADHIKARI J.) (S.C.HARMADHIKARI J.) (S.C.HARMADHIKARI J.)