1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 4 OF 2010 Mr. Ratanlal Radhavallabh Kanodia. ... Petitioner Vs M/s. Apollo Trade Ltd. ... Respondent Mr. Ashok M. Saraogi for the Petitioner. Mr. Sandeep Parikh i/b A.S. Dayal & Associates for the Respondent. CORAM : S.J. VAZIFDAR, J. DATED : 28TH JUNE, 2010. P.C. : 1. This is a petition for winding up the Respondent-company on the ground that it is unable to pay its debts. 2. The Petitioner’s case is that the company had agreed to sell certain material to the Petitioner. In consideration thereof, the Petitioner paid a sum of Rs.14,00,000/- to the company. The receipt of the sum of Rs.14,00,000/- is admitted. It is also admitted that the 2 company did not deliver the material to the Petitioner. Thus, normally, the Petitioner would be entitled to a refund of the said amount. 3. The Respondent’s defence, however, is that this amount of Rs.14,00,000/- was only routed through it. The money was actually to be paid by the Petitioner to one M/s. Star Tech Engineers and Contractors, who were to supply the material to the Petitioner. In other words, according to the company, there was no transaction between itself and the Petitioner. It is difficult to accept this contention as there is nothing to suggest that the company acted merely as an agent/broker in respect of the transaction. The only aspect which can possibly raise some doubt is the fact that the company had, by a letter dated 28th August, 2009, informed the Petitioner that it had, under his oral instructions, paid the said amount of Rs,14,00,000/- to the said M/s. Star Tech Engineers and Contractors. The company refunded a sum of Rs.70,000/-. Thus, according to the company, it forwarded a sum of Rs.13,30,000/- to M/s. Star Tech Engineers and Contractors. 3 4. Prima facie, it appears that the company had agreed to sell the material to the Petitioner after obtaining the same from M/s. Star Tech Engineers and Contractors. If that is so, then the failure of M/s. Star Tech Engineers and Contractors to furnish the material to the company would not be a valid excuse to refuse to refund the amount paid by the Petitioner for the goods, which were admittedly never delivered. In the circumstances, I am inclined to pass a conditional order as regards this sum. 5. As far as the sum of Rs.5,00,000/- is concerned, there is more than just a bona fide defence. The Petitioner contends that he arranged the payment of Rs.5,00,000/- through a third party on the Petitioner’s insistence for the same. There is nothing on record which establishes this case. There is not even a letter addressed by or to a third party by the Petitioner in this regard. The third party has not discharged the company in this regard even assuming that the payment was made. 6. In the circumstances, the following order is passed :- (i) The company is directed to deposit in this Court a sum of Rs.13,30,000/- on or before 31st August, 4 2010. (ii) Upon the amount being deposited, the same shall be invested in a nationalized bank initially for a period of one year and thereafter for like periods of one year each. (iii) In the event of the amount being so deposited and in the event of the Petitioner filing a suit within twelve weeks from the date of the Petitioner's advocate being informed of the same in writing, the amount shall stand transferred to the credit of that suit. The Petitioner shall be at liberty to make an application in the suit for withdrawal of the amount. (iv) Instead of depositing the amount, the company shall be at liberty to furnish a bank guarantee of a Nationalized Bank in the said sum of Rs.13,30,000/- together with interest thereon at the rate of ten per cent per annum on or before 31st August, 2010. The rate of further interest is ad hoc and shall be subject to any orders that may be passed in any proceedings. (v) In the event of the bank guarantee being so 5 furnished and in the event of the Petitioner filing a suit within twelve weeks from the date of the Petitioner's advocate being informed of the same in writing, the guarantee shall stand transferred to the credit of that Suit. (vi) In the event of the suit not being filed as aforesaid, the petition shall stand dismissed and the amount with interest thereon shall be refunded to the Respondent–company. (vii) In case of failure on the part of the company to deposit the amount as aforesaid, the Petition shall stand admitted and to be advertised in Free Press Journal, Maharashtra Times and Maharashtra Government Gazette. The Petitioner to deposit an amount of Rs.10,000/- with the Prothonotary and Senior Master of this Court within four weeks from the date of default. Mr. Sandeep Parikh waives service on behalf of the Respondent.