1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. COMPANY PETITION NO.290 OF 2000 Vashumal D. Raheja. ...Petitioner. Versus M/s.Olympus Super Structures Pvt.Ltd. ...Respondent. ....... Ms.Sheela Pathak i/b. Phatak Associates for the Petitioner. Mr.Sandeep Parikh i/b.Deven Dwarkadas & Partner for the Respondent. ...... CORAM : DR. D.Y. CHANDRACHUD, J. November 4, 2009. P.C.: The case of the Petitioner in the Petition for winding up instituted under Sections 433 and 434 of the Companies' Act, 1956, is that “in or about the month of October 1995 on various dates” the Petitioner lent and advanced to the Company a loan for business purposes. According to the Petitioner, the amount was arranged from the members of his family. In order to secure the repayment of the loan, which is stated to be in the amount of Rs.10 lakhs, the Company is alleged to have executed Promissory Notes on different dates. According to the Petitioner, the Company agreed to pay interest at the rate of 24% per annum and to repay the loan on the Petitioner 2 surrendering eleven promissory notes which were executed by the Company. It has been averred that the Company issued a cheque on 30th December 1996 drawn on Canara Bank in the amount of Rs.10 lakhs through a Director who was authorised to sign and deliver the cheque. Upon the delivery of the cheque, the Petitioner is alleged to have returned eleven Promissory Notes to the Company. The cheque was issued towards repayment of the principal. The cheque was, however, alleged to be dishonoured upon presentation. The Petitioner issued an Advocate's notice dated 30th January 1997 followed by statutory notices dated 8th October 1998 and 18th November 1999 under Sections 433 and 434 of the Companies' Act, 1956. 2. The Company Petition was admitted by an order dated 10th August 2000. An affidavit in reply has been filed to the Company Petition. Initially, by an order dated 21st November 2008, the Company Petition was dismissed. The Company Petition was subsequently restored to file on 9th April 2009. The Petition is now placed for hearing and final disposal. 3 3. The first defence in the affidavit in reply is that the notice under Section 434 of the Companies' Act, 1956 has not been served on the Registered Office of the Company. Both the notices dated 8th October 1998 and 18th November 1999 are addressed to the Company at the following address : “Harshad Villa,Nehru Road, Vile Parle (East), Mumbai-400 057.” According to the Company, it has shifted its registered office with effect from 15th February 1998 to the following address: “Wembley, Ground Floor, Lower Level, Flat No.001/002, 300, Playground Road, Vile Parle (East), Mumbai-400 057.” 4. The Company has filed Form 18 with the Registrar of Companies on 16th March 1998, notifying the change in the registered office of the Company with effect from 15th February 1998 as aforesaid. This averment which has been made in paragraph 3 of the affidavit in reply of Mr.Dinky Mascarenhas, a Director of the Company affirmed on 16th April 2008 has not been controverted by filing an affidavit in rejoinder. The affidavit, it must be noted, was filed over 4 eighteen months ago in spite of which no rejoinder has been filed. During the course of the submissions, Counsel appearing on behalf of the Petitioner sought to tender an extract down loaded from the website of the Registrar of Companies which shows the registered office of the Company at the place where service was stated to have been effected of the statutory notice. It would not be either appropriate or proper for the Court to proceed on the basis of a document tendered across the Bar, purported to have been down loaded from the website of the Registrar of Companies, in the absence of a formal affidavit setting out these facts. The Petitioner has not responded on affidavit to the defence that the registered office of the Company has been shifted. A photo copy of Form 18 dated 16th March 1998 which contains a stamped endorsement of receipt by the Registrar of Companies has been annexed to the reply to the Petition. That being the position, the Petition would be liable to be dismissed on the basis of the aforesaid defence which is to the effect that the service of the statutory notice was not effected on the registered office of the Company. 5 5. That apart, there is merit in the submission which has been urged on behalf of the Company that there is a bona fide dispute which raises several triable issues which require resolution in a suit between the parties. The defence of the Company is that in the year 1994-95, the Petitioner was introduced to its Director by a common acquaintance. The Petitioner is alleged to have informed the deponent of the affidavit in reply that he was carrying on business of providing finance and was acting as a real estate broker. In the month of November 1996, the Petitioner is alleged to have offered to lend a sum of Rs.10,00,000/- to the Respondent to enable the Respondent to fund one of its construction projects. In anticipation of receiving a sum of Rs.10 lakhs, the Respondent issued in the name of the Petitioner, a post dated cheque dated 30th December 1996 in the sum of Rs.10 lakhs. On receipt of the post dated cheque, the Petitioner is alleged to have promised to pay by cheque the sum of Rs.10,00,000/-. The Respondent claims that it has not received any money from the Petitioner and in the month of December 1996, repeated requests were made to return the post dated cheque. The Petitioner is alleged to have promised to bring funds or to return the cheque, but instead 6 of doing so, fraudulently sought to encash the cheque. According to the Company, the Petitioner was not entitled to encash the cheque as there was no consideration flowing in respect thereof. 6. The aforesaid defence which is set out in paragraph 18 of the affidavit in reply, has remained uncontroverted. As previously noted, the Petitioner has not filed any affidavit in rejoinder to deal with the defence that has been taken in the affidavit in reply. That apart, the case of the Petitioner essentially turns upon the oral agreement which is alleged to have taken place in or about the first week of October 1995 in pursuance of the request by the Company for a loan in the amount of Rs.10 lakhs. In paragraph 8 of the Company Petition, the Petitioner pleads that in or about October 1995 on various dates the aforesaid amount was lent and advanced to the Company by arranging funds from the members of the Petitioner's family. No details of the loan have been furnished. The mode in which the loan was disbursed has not been stated nor is it stated whether the amounts were paid by cheque or cash. During the course of the hearing, Counsel appearing on behalf of the Petitioner 7 stated that the amount was paid partly by cheque and partly in cash, but there is no such pleading to that effect. In paragraph 19 of the reply, the Company has called upon the Petitioner to produce its books of account and/or Banker's book and/or pass book evidencing the alleged payment of a sum of Rs.10 lakhs to the Company. The books of account and Bank pass book have not been produced. In these circumstances, it is abundantly clear that there is a bona fide dispute between the parties which raises triable issues that would require adjudication on the basis of evidence in a suit. The Company Petition would, therefore, not be maintainable even on merits since it cannot be stated that there is a debt due and payable by the Company to the Petitioner on the basis of the material on the record. 7. The Company Petition shall, in the circumstances, stand dismissed. .....