ASN 1 Appeal-513-514.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL LODGING NO.513 OF 2011 WITH APPEAL LODGING NO.514 OF 2011 IN COMPANY PETITION NO.134 OF 2010 ENSO Pvt. Ltd. ...Appellant. Vs. Chandrakant Jadavji HUF and ors. ...Respondents. Mr.D.D.Madon, Sr.Advocate with Mr. Rahul Narichania, Mr. Vishal Muglikar, Mrs. N.D.Motiwala and Ms. Sneha Pende i/by Motiwala & Co. for the Appellant. Mr. Snehal Shah with Mr. Ramchandran N. i/by Narayanan & Narayanan for Respondent Nos. 1 and 2. CORAM : MOHIT S. SHAH, C. J. AND SMT.R.P. SONDURBALDOTA, J. 23 August 2011 PC: These appeals are directed against the order dated 25 June 2011 in Company Petition No.134 of 2010 and order dated 5 July 2011 in Review Petition No.3 of 2010 passed by the Company Judge of this Court. 2 The respondents herein filed the above numbered company petition for winding up of the appellant-company on the ground that ASN 2 Appeal-513-514.sxw company is unable to pay its debt to the petitioning creditor in the sum of Rs.5,62,20,165/- together with further interest. The claim is made on the basis of the leave and licence agreement dated July 2008. The appellant company is the licensee. As per the leave and licence agreement relied upon by the petitioning creditor, the licence fee was at the rate of Rs. 20,16,300/- per month for an initial period of thirty months and thereafter Rs.23,13,745/- per month. According to the petitioning creditor, the appellant-company paid licence fee only for the first two months and thereafter it did not pay the licence fee or towards the security deposit. By an order dated 25 June 2010, learned Company Judge admitted the company petition on the ground that there was no reply to the statutory notice and the company was not present for hearing on 25 June 2010. However, learned Company Judge gave an opportunity to the appellant company to pay Rs.5,62,20,165/- by 31 August 2010. On the company making the payment, the company petition shall stand dismissed and on failure to pay the amount as aforesaid, the petition shall stand admitted and shall be advetised. 3 The appellant company filed the above numbered review petition pointing out its defences and also pointing out the circumstances in which the appellant company did not appear before the Company Court at the time of hearing of the winding up petition. After hearing the learned counsel for the original petitioner, the learned Company Judge passed the following order. ASN 3 Appeal-513-514.sxw “1 Even on the petitioner’s case, the amount payable by the company to the respondents in this petition, inclusive of interest at 10%, comes to about Rs.1,56,00,000/- 2 There is no case for review. The review petitioner is at liberty to adopt proceedings for having the order dated 25th June, 2011, set aside on the ground that it was an ex-parte order.” 4 Mr. Madon, learned counsel for the appellant-company also submits that leave and licence agreement relied upon by the respondents is not signed or registered as required by Section 55 of the the Maharashtra Rent Control Act, 1999 and therefore, such an agreement cannot be enforced or acted upon. The learned counsel for the appellant states that the licence fee being paid by the previous tenant was only at the rate of Rs. 5,56,850/- per month. 5 Mr. Madon, learned counsel for the appellant-company states that it was not the appellant’s case that appellant is liable to pay to the respondent herein Rs.1,56,00,000/- inclusive of interest at the rate of 10% per annum. It is submitted that the payment of Rs.60,00,000/- made by the appellant company was not taken out into account for arriving at the figure of Rs.1,56,00,000/-. ASN 4 Appeal-513-514.sxw The learned counsel further submits that without prejudice to the rights and contentions of the appellant company the appellant- company is prepared to pay a sum of Rs.1,20,00,000/- to the respondents in 12 equal monthly instalments of Rs.10,00,000/- each on 15th day of each month commencing from 15th October 2011. It is further submitted that it may be made clear that in case of default of any two instalments or the last instalment, the Company Petition No.134 of 2010 shall stand admitted and the same be advertised in two newspapers namely the Free Press Journal (English) and Maharashtra Times (Marathi). It is further submitted that the respondents may file a civil suit or any other proceeding for the recovery of balance amount, if any. But, according to the appellant-company, the respondents are not entitled to claim any further amount. 6 On the other hand, learned counsel for the respondent/original petitioner creditor supports the order passed by the learned company Judge and submits that having entered into leave and licence agreement, the appellant-company is bound to pay full amount for which winding up petition No.134 of 2010 has been filed. 7 In response to a query from the Court as to whether the respondents have received the amount of Rs.60,00,000/- referred to by the appellant-company, the learned counsel for the respondents has not disputed that the respondents have received the said amount of Rs. 60,00,000/-. However, the learned counsel submits that, according to the respondents, the amount has been received towards the licence fee for ASN 5 Appeal-513-514.sxw three months. The learned counsel for the respondents further submits that the agreement can be acted upon. 8 Having heard the learned counsel for the parties, we are of the view that, interest of justice would be served if without going into the merits of the rival contentions, these appeals are disposed of in terms of the following order. 9 In response to the query from the court to whom the appellant company shall make payment for the purpose of compliance of this order. The learned counsel for the respondents states that so far the payments were made in favour of “Kantilal Jadavji and others”. Hence, by this order the payments shall be made in favour of “Kantilal Jadavji and others” payable on 15th day of each month commencing from 15th October, 2011 10) This order is passed without prejudice to the rights and contentions of the parties. 11) Both the appeals stand disposed of in terms of the following order. ORDER a) The aforesaid impugned orders of the Company Judge of this Court are set aside. ASN 6 Appeal-513-514.sxw b) On condition that the appellant company shall pay a sum of Rs.1,20,00,000/- to the respondents in 12 equal monthly instalments of Rs.10,00,000/- payable on 15th day of each month commencing from October, 2011 inclusive of interest on licence fee calculated at the rate of Rs.5,56,850/- per month till the appellant company vacated the premises. c) In case of default of any two instalments or last instalment, the Company Petition No.134 of 2010 shall stand admitted and same shall be advertised in two newspapers namely Free Press Journal and Maharashtra Times (Marathi) upon the respondents depositing an amount of Rs.10,000/- with the Company Registrar of this Court. d) The payments shall be made by account payee cheque or demand draft payable in favour of “Kantilal Jadavji and others”. The respondents will be at liberty to file a civil suit or any other proceeding for recovery of the balance amount, if any. e) In case the appellant company pays the aforesaid amount of Rs.1,20,00,000/- within stipulated time limit and as per the instalments indicated above, the Company Petition No.134 of 2010 shall stand dismissed without prejudice to the rights of the respondents to claim any further amount by filing a civil suit or other proceeding. CHIEF JUSTICE ASN 7 Appeal-513-514.sxw SMT. R.P. SONDURBALDOTA, J.