1 cp-353-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi COMPANY PETITION NO. 353 OF 2010. Mr. Vijaya Raghava Menon. ..Petitioner. vs. M/s. LCL Logistixs (India) Private Limited. ..Respondent. .... Mr. Ronak Shah, for Petitioner. Mr. Rohan Cama, i/b. Beena Pillai, for Respondent. .... CORAM : S.J. KATHAWALLA, J. DATE : 15TH JULY 2011. P.C. : This Company Petition was filed by the Petitioner seeking winding up of the Respondent Company M/s. LCL Logistixs (India) Private Limited (the Respondent Company) under sections 433 and 434 of the Companies Act, 1956. 2. According to the Petitioner, by an appointment letter dated 9th August 2005, the Respondent Company appointed the Petitioner as ‘Executive - Import Sales’ on terms and conditions set out in the said appointment letter. Under clause (2) of the said letter, it was provided that the appointment of the Petitioner can be terminated by either side on two months notice after confirmation. By his letter dated 9th November 2009, the Petitioner resigned from the services of the Company with two month’s prior notice. According to the Petitioner, admittedly he rendered his services to the Company for the said notice period and he is therefore entitled to receive salary of the said notice period. According to the Petitioner since the Company failed and neglected to pay the salary pertaining to the said 2 cp-353-10 two months notice period by his Advocate’s notice dated 9th February 2010, the Company was called upon to pay the total outstanding amount of Rs. 95,000/- to the Petitioner within three weeks from the receipt of the said notice, failing which appropriate steps would be taken by the Petitioner to recover the said amount. According to the Petitioner, after the receipt of the said statutory notice, the Company by its Reply letter dated 25th February 2010 denied the claim of the Petitioner and thereby attempted to avoid their liability under the law. According to the Petitioner, he therefore had no alternative but to file the present Petition. 3. It is submitted on behalf of the Petitioner that an amount of Rs.95,000/- is due and payable by the Company to the Petitioner as more particularly, set out in the particulars of claim (Exhibit ‘E’ to the Petition). It is submitted that the Company is unable to pay and discharge its liabilities towards other creditors including the Petitioner himself and therefore liable to be wound up. It is thus submitted, that the above Company Petition therefore deserves to be admitted. 4. The Company has filed its Affidavit-in-Reply dated 28th March 2011. The Company has inter alia pointed out that though the Petitioner had agreed to comply with the two months period and hand over its responsibility to the superior officers, he failed to do so. To support this contention, the Company has relied on the the access card data of the Company (Annexure ‘D’ to its Reply) to show that the Petitioner has never entered the Company after 9th November 2009 i.e. after he submitted his letter of resignation. It is also submitted that the Petitioner had collected the data base of the clients of the Company and solicited work and the Petitioner was 3 cp-353-10 trying to form a Company in the same line of business as that of the Respondent Company. To substantiate the said contention, the Company has relied on the e-mail communications annexed and marked as Exhibits ‘B’ and ‘C’ to the said Reply. The Company has also relied on its balance sheet and the profit and loss account for the years 2008-09 and 2009-10 (Annexure E and F) and submitted that the same belies the claim of the Petitioner that the Company is unable to pay its debts. 5. The Petitioner has mentioned in the Petition that he has admittedly attended the Office of the Company for the period of two months post acceptance of his resignation i.e. the notice period from the date of his resignation and therefore is entitled to the salary and other dues qua the said period of two months. However, this fact is belied by the access card data produced by the Company. This Court therefore sought an explanation from the Advocate appearing for the Petitioner. In response, the Advocate for the Petitioner informed the Court that during the notice period, the Petitioner had tried to attend the Office of the Company but he was physically stopped from doing so. On further enquiry by the Court as to why this fact is not mentioned in the statutory notice and/or in the Petition but instead an impression is given in the statutory notice as well as in the Petition that the Petitioner has attended his Office and completed the two months notice period, the Petitioner could not offer any explanation. In view thereof, I am convinced that a bonafide dispute is raised by the Company qua the alleged claim of the Petitioner. 6. It is a well settled principle of law that the Company Court does not conclusively adjudicate the claim of the parties but investigates summarily whether the dispute as regards indebtedness 4 cp-353-10 is bonafide, or not. In my view, the Respondent Company has raised a genuine and bonafide dispute and atleast prima-facie offered a proper/substantial explanation for its plea of no liability. The dispute therefore requires adjudication on further evidence in a properly constituted Suit. 7. For the aforestated reasons, the Company Petition is dismissed. However, there will no order as to costs. Needless to add that in the event of the Petitioner filing a Civil Suit against the Respondent Company in the matter in issue, the same will be disposed of on its own merits without taking into consideration any of the observations made in this order, which are prima-facie and not upon a detailed adjudication of the disputes between the parties. [ S.J. KATHAWALLA, J. ]