SSM 1 cp.27.10.sxw IN THE HIGH COURT OF JUDICATURE OF BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 27 OF 2010 Sudhir Sood, S/o. A. K. Sood .... Petitioner Versus M/s. Hind Terminals Pvt. Ltd. .... Respondent ______ Vipin Kukmar Gupta i/by V. Nirmala Gopal for the Petitioner. Senior Counsel MPS Rao a/w Adv. Ujjwala Deshmukh i/b Deven Dwarkadas for the Respondents. CORAM: S. C. DHARMADHIKARI, J. DATED: 11 th FEBRUARY, 2011. P.C.: Heard learned Counsel for the Petitioner and Mr. Rao learned Counsel for the Respondent. Perused the Petition and the annexures thereto and the Affidavit-in-Reply and Rejoinder. 2. The Petitioner has filed this Petition for winding up of the Respondent company on the basis that there is an amount due and payable to him towards commission charges. The Petitioner has based his claim on an agreement between the parties under which the SSM 2 cp.27.10.sxw Petitioner was to get a suitable plot of land in the State of Harayana for the Respondent company to set up a Container Depot. It is stated that the Petitioner made all efforts and identified the plot of land and after the Respondents verified the title in relation thereto the deal was finalised with the seller The Petitioner was, therefore, entitled to his commission on the purchase consideration. However, that having been denied to the Petitioner, he had addressed a letter and in response thereto the Petitioner’s bill no. 2 dated 23 rd October, 2006 was partly cleared by making a part payment of Rs.25,00,000/-. Thereafter, the balance amount has not been paid and the Petitioner has claimed a sum of Rs.2,64,10,461/-. According to him, it is only because of the efforts undertaken by him that the company could get a suitable plot of land. If the services were engaged and to the satisfaction of the Respondent, the Petitioner undertook all efforts and ultimately the land was acquired, then, the commission should have been released in its entirety and that being not done, the instant SSM 3 cp.27.10.sxw Petition is filed. 3. In the reply affidavit the company has pointed out that it has filed the suit against the Petitioner in the Delhi High Court being Suit No. CS (OS) 2413 of 2009 for recovery of an amount of Rs. 5,68,60,407/- on account of the loss and damage caused by the Petitioner. The Petitioner has been accused of negligence and that resulted in the loss to the company. The Respondent has pointed out that it is commercially solvent and that it has several projects in hand and its work is in progress. It has, also, recorded total sales of Rs.271.19 Crores. It is in the business of development and operation of inland container depots and container depot situate across the country. For its project in Harayana State it had approached the Petitioner and the correspondence showed that the Petitioner proclaimed to be an expert in striking deals in real estate. 4. The brokerage was finalized but the MOU envisaged that the Petitioner was to ensure that the land which will be purchased by SSM 4 cp.27.10.sxw the Respondent is free from all encumbrances, liens, charges, mortgages, attachments and there are no litigations. The Petitioner had assured that the plot of land is free from encumbrances. The Petitioner knew the requirement of the Respondent but there are various breaches committed by the Petitioner in asmuch as the land was not alongside the Railway line, the lands purchased were embroiled in litigation. One of the plots was belonging to the Grampanchayat and therefore there could not be any railway line or railway side nearby or on the same. Even the access roads were not proper. It is in such circumstances and on account of the negligence of the Petitioner that the claim has been made. Infact, the Petitioner has also filed a suit against the Respondent in the Delhi High Court being Suit No 631 of 2009 wherein he claims a decree in the sum of Rs. 2, 37,49,406/-. 5. In rejoinder, the Petitioner has argued that the land was identified and it was accepted by the Respondent. The Respondent SSM 5 cp.27.10.sxw had expert legal advice. The Respondent had verified and scrutinized all documents and there was no encumbrances as alleged. Even the Petitioner’s legal advisors advised that the Grampanchayat land is not an obstacle but the same could be utilized by the Respondent. In this circumstances, the defence now raised cannot be said to be bonafide. 6. Having heard the learned Counsel for the parties at some length and perusing with their assistance the relevant material, I am of the opinion that the Company Petition deserves to be dismissed. 7. The Petitioner has raised a claim for commission in the form of brokerage for striking the deal in real estate. He has proclaimed that he has expertise and hence his services were engaged. The agreement in that behalf is dated 4 th May, 2006. That agreement itself sets out the obligations of the Petitioner. If the company has stated that the land was not free from encumbrances but the Petitioner asserts otherwise and when civil suits are pending between both the parties, that is reason enough not to entertain the Petition. SSM 6 cp.27.10.sxw 8. The breaches have been pointed in paragraph 15, 16 and 19 of the Affidavit-in-Reply. It is claimed that the title to the land was not marketable. In paragraph Nos. 20 and 21 of the Reply, it has been pointed out by the Respondent that in or about November, 2006 the Petitioner informed the Respondent that he had identified entire piece of land which met the Respondent’s requirements. Therefore, there was a supplementary MOU dated 24 th November, 2006. By the supplementary MOU the Petitioner agreed, inter alia, to perform certain obligations. Thereafter, there was correspondence exchanged so also e-mails. The Petitioner has been accused of not complying with the terms and conditions of the MOU. There was a termination of the said MOU dated 4 th May, 2006 between the Petitioner and the Respondent. This was done by a letter dated 10 th March, 2009 by the Respondent. It is alleged that after termination of this MOU as a preemptive step and view to defeat the Respondent's claim, a false suit was filed by the Petitioner against the Respondent and therefore SSM 7 cp.27.10.sxw the Respondents filed a suit against the Petitioner. 9. In the Rejoinder Affidavit, the Petitioner states that the suit filed by the Respondent is false. It is stated that in the plaint, it is stated that the Respondent does not have sufficient amount for spending on court fee. 10. It has been pointed out that the Petitioner’s dues have been unnecessary withheld. In paragraph nos. 7 to 9 of the Rejoinder Affidavit the Petitioner place his version and blames the Respondent for shifting stands. It is alleged that every transaction is done after the Respondent was satisfied with the title of the land and there was consultation with their lawyers. 11. To my mind, such version cannot be tested in the limited jurisdiction of this court. The Respondent company has raised a defence to the claim of the Petitioner and has pointed out the events that led to the termination of the MOU. Whether the termination of the MOU was justified or not and whether the Petitioner’s dues have SSM 8 cp.27.10.sxw been unnecessary withheld are matters which require evidence and cannot be decided in a Petition under Section 433 of the Companies Act, 1956. The proceedings are not to be converted into a suit for recovery of money. It is well settled that pendency of a Civil Suit is no bar for entertaining a winding up Petition, yet, in the peculiar facts of this case the defence raised is bonafide. The pleas raised by both sides are based on the contents of the plaints in their respective Civil Suits. Both are pending and parties are leading the evidence therein. Thus, this is not a fit case for admitting a winding up Petition. It is accordingly dismissed but without any order as to costs. 12. Needless to state that the observations in this order are made only for disposal of company petition for winding up and cannot influence the Court which is trying the Civil Suits. (S. C. DHARMADHIKARI, J).