1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. COMPANY PETITION NO.153 OF 2000 Mr.Nurrudin P. Hirani. ...Petitioner. Versus M/s.Associated Cranes Pvt.Ltd. ...Respondent. ....... Ms.Neeta Solanki i/b. Kiran Jain & Co.for the Petitioner. None for the Respondent. ...... CORAM : DR. D.Y. CHANDRACHUD, J. November 4, 2009. P.C.: The basis of the claim in the Company Petition for winding up under Sections 433 and 434 of the Companies' Act, 1956, is that an amount of Rs.13 lakhs is due and payable by the Company to the Petitioner. According to the Petitioner, an amount of Rs.38 lakhs was advanced to the Company under a trade loan on 10th and 16th September 1998 in the amount of Rs.5 lakhs and Rs.33 lakhs respectively. The Company is alleged to have repaid an amount of Rs. 25 lakhs by a cheque dated 24th March 1999, leaving a balance of Rs. 13 lakhs outstanding. The Company issued a bill of exchange in the amount of Rs.13 lakhs which was accepted by one Amitabh Aggarwal, 2 payable to the Petitioner. The bill of exchange was accepted on 24th March 1999, but was dishonoured on presentation. A statutory notice under Section 434 of the Companies' Act, 1956 was addressed to the Company. At the stage of admission, an affidavit in reply was filed on behalf of the Company in which it is alleged that the Petitioner had approached the Company with a proposal for carrying on a business of export in a joint venture on a profit sharing basis. The Company admitted having received an amount of Rs.38 lakhs, but its defence was that the business resulted in a loss and accounts were settled by the payment of Rs.25 lakhs to the Petitioner on 24th March 1999. The Company denied that it had drawn or executed a Bill of Exchange. Certain other defences were also raised with regard to the Bill of Exchange. The Company Petition was admitted by an order dated 29th January 2001. An appeal was filed against the order of admission. The appeal was dismissed on 29th August 2001. A Special Leave 3 Petition was dismissed by the Supreme Court on 28th January 2002. The Petitioner had also instituted a Summary Suit under Order 37 of the Code of Civil Procedure, 1908 (Summary Suit 3432 of 2001) for the recovery of its dues. In the Summons for Judgment, a Learned Single Judge of this Court, by an order dated 8th January 2004 came to the conclusion that the defence of the Company was illusory. However, an opportunity to defend the suit was granted to the Company subject to the deposit of Rs.15 lakhs within eight weeks. The order of the Learned Single Judge was confirmed in appeal on 31st March 2004 and the Court is informed by the Counsel for the Petitioner that the Special Leave Petition was dismissed by the Supreme Court. From the material on the record, it is evident that the Company is indebted to the Petitioner in a sum of Rs.13 lakhs. The defence of the Company that there was a joint venture for the purposes of carrying on export business, has no merit whatsoever. The defence is completely silent with regard to the terms of the alleged joint venture, the transaction between the parties and other relevant details. The contention that an amount of Rs.25 lakhs was 4 paid in a full and final settlement to the Petitioner cannot be accepted, because it is inconceivable that the Company would have paid such a substantial amount in a settlement of a larger amount of Rs.30 lakhs without a written receipt or acknowledgment. There is no documentary basis available for even prima facie accepting the contention that the amount of Rs.25 lakhs was paid in full and final settlement. As already noted earlier, even in a Summary Suit that has been instituted by the Petitioner, a Learned Single Judge of this Court has found the defence of the Company to be illusory and sham. The conditional order for the deposit of Rs.15 lakhs was not complied with. In these circumstances, it is evident that the Company is unable to pay its debts and an order of winding up would have to be passed. An affidavit of publication has been filed. The Company Petition is accordingly made absolute in terms of prayer clauses (a) and (b). .....