1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.772 OF 2008 Soly Mistry .. Petitioner Versus Rosy Blue (India) Pvt.Ltd. .. Respondent Mr.R.S.Champawat for petitioner Mr.Kapadia i/b. Dadhich & Co. for respondent CORAM : S.C.DHARMADHIKARI, J. DATE : 23rd April 2009. P.C. . In this company petition which the petitioner has filed invoking this Court’s jurisdiction under section 433 of the Companies Act, 1956, the relief is that the respondent 2 M/s.Rosy Blue (India) Pvt.ltd. be wound up by and under the directions of this Court. 2. The petitioner states that the claim arises out of some service rendered as are more particularly set out in the statutory notice, a copy of which is annexed to the petition at Exh.F. Petitioner states that although this notice as well as company petition proceed on the basis that respondent and one Inter Gold (India) Pvt.Ltd. were jointly and severally liable to pay for the work carried out, yet, it is the respondent which has made all payment, save and except,the amounts which are claimed in the instant petition. It is urged that the liability as far as these sums is also admitted and there is no defence to the claim. Hence, the petition be admitted. 3. However, it is contended on behalf of the respondent by Mr.Kapadia that in the affidavit in 3 reply it has been stated as to how payments have been made by the respondent on behalf of M/s.Inter Gold. It is not disputed that Inter Gold is a group company but in order to facilitate the said Inter gold, payment was made. However, on this count alone the company cannot be said to be liable and my attention is invited to a letter dated 14th July 2003 (Exh.D) to the petition, where the petitioner has stated to be aware of this position. 4. During the course of arguments, my attention is also invited to para 10 of the affidavit in reply which reads thus:- "10. I say that, initially, the petitioner was raising his Running Account Bills (RA Bills) in the name of Inter Gold. As and by way of example, copies of some RA Bills issued by the petitioner are collectively annexed 4 hereto and marked Exh."4". I say that although payments were made by the respondent on behalf of Inter Gold to the petitioner, the Resopondent was doing so as the said Inter Good was a group company of the respondent and only in order to facilitate Inter Gold in the works and I say that the respondent was in no way liable under the contract." 5. After the matter was argued for some time, I sought clarification from Mr.Champawat as to whether the petitioner has proceeded against Inter Gold and he fairly states that a notice has been served on the said company and the petitioner desires to adopt appropriate proceedings in order to recover the amounts from the said company or seek its winding up. 6. In the light of the statement made in para 10 of the affidavit so also bearing in mind 5 the contents of the letter Exh.D, in my view, remedy of the petitioner is not to seek winding up of respondent company but to proceed against the distinct entity M/s.Inter Gold. Needless to state that in the light of the position clarified by the respondent in their affidavit in reply, the petitioner can proceed against M/s.Inter Gold to recover the balance amount under the subject contract. Therefore, it is not necessary to deal with the other pleas raised in the affidavit in reply. 7. There is no necessity of considering the merits of the petitioner’s claim and going into the rival contentions in that behalf, in the light of the above clarification. Having regard to the clarification issued above, I am of the opinion that if the petitioner proceeds against M/s.Inter Gold, then, merely because he had filed a petition also against Rosy Blue (India) Pvt.Ltd. would not prevent him from seeking 6 necessary reliefs in the proceedings against M/s.Inter Gold. Similarly, while he is proceeding against the said company, the version set out by M/s.Rosy Blue as far as the merits of the claim shall not constitute any impediment or bar for the petitioner in proceeding against M/s.Inter Gold. By this clarification in my view, sufficient protection is given to the petitioner. Even otherwise, finding that the petitioner cannot proceed against the respondent, there is no alternative but to dismiss this petition. However, it is dismissed subject to clarification issued above. No costs. (S.C.Dharmadhikari, J)