((-1-)) MST IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.825 OF 2007 M/s.Padma Plastcs Petitioner versus V A V Life Sciences Pvt.Ltd. Respondent Shadab Peerzade for petitioner. S.K.Jain i/by A.H.Punwani for respondent. CORAM : A.M.KHANWILKAR, J. DATE : 25th February 2008 PC : 1. Heard counsel for the parties. Perused the pleadings and documents pressed into service on behalf of the parties. Going by the averments in the petition it is amply clear that the petitioner had parted with a sum of Rs.2.15 lakh by cheque bearing No.35859 dated 27th April 2006 which cheque, it is not in dispute, has been encashed by the respondent Indeed, the petitioner’s case is that the said payment was offered by the petitioner towards full payment as per the terms and conditions in the offer letter dated 29th March 2006. It is not necessary for ((-2-)) MST me to enter into the controversy that the said amount was paid as full payment or only part payment, as is the case of the respondent. The fact remains that the amount has been made over to the respondent. As the respondent failed to supply the Methyl Acetoacetate Crude 55% and Ethyl Acetoacetate Crude 75% for which the payment was made by the petitioner, the petitioner issued statutory notice to the respondent. 2. In response to the statutory notice, the specific stand taken on behalf of the respondent is that the respondent was rendering necessary services to the petitioner for the purposes of clearance of various goods imported by them and there was running account maintained by the parties. It is then asserted that it is a matter of record that the cheque in question for sum of Rs.2.15 lakh has been issued by the petitioner on the ground of outstanding dues and payable by the petitioner to the respondent for the services rendered by the respondent. Whereas, in the reply filed by the respondent to oppose the present petition, an entirely new contention has been taken. The respondent now asserts that there was joint venture arrangement to be managed ((-3-)) MST jointly by the parties so as to share the costs, benefits and profits equally. The respondent also relies on draft Memorandum of Understanding prepared in relation to the said joint venture arrangement, which was sent to the petitioner for approval in February 2006. 3. The stand taken by the respondent in the reply affidavit has been categorically denied by the petitioner in the rejoinder affidavit. According to the petitioner, no such joint venture arrangement was envisaged between the parties and it is figment of imagination of the respondent. Besides, I find force in the stand taken by the petitioner that the plea raised by the respondent is not supported by any contemporaneous material on record. Even the Memorandum of Understanding on which reliance is placed by the respondent, is an unsigned document and is of no avail. There is no commitment from the petitioner about the said joint venture arrangement atleast pointed out in the affidavits filed by the respondent. Taking over all view of the matter, I have no hesitation in concluding that the respondent has taken frivolous and bogus stand. The respondent is obviously not willing to part with the amount already received from the ((-4-)) MST petitioner. The stand of the respondent that the respondent has already incurred certain expenses, does not commend to me. Suffice it to observe that the respondent has failed and neglected to pay the outstanding dues payable to the petitioner. That too in spite of statutory notice. It necessarily follows that the respondent is unable to pay its debt. 4. The argument of the respondent that the respondent has sufficient means to pay the amount of Rs.2.15 lakh for which reason no indulgence be shown to the petitioner, also deserves to be stated to be rejected. It is well established position that if the Company Court were to hold that the defence of the respondent company is not bona fide and is frivolous, the fact that the respondent company has sufficient means to pay its debt, is of no consequence. In such a case, the statutory presumption of company being unable to pay its debt, will have to be drawn on the finding that the respondent company has failed and neglected to pay its debt in spite of statutory notice. Hence, even this submission of the respondent will have to be rejected. 5. On the above findings, the company petition ((-5-)) MST would deserve admission. However, instead of straight away admitting the petition, I would think it appropriate to give one opportunity to the company by passing following order. 6. ORDER :- (a) The respondent company shall deposit a sum of Rs.2.15 lakh (Rs.Two lakh fifteen thousand only) in this Court within four weeks from today, failing which the company petition shall stand admitted without further reference to the Court; (b) The amount so deposited, shall be retained by the Registrar (O.S.)/Prothonotary & Senior Master of this Court for a period of ten weeks from today to enable the petitioner to institute appropriate proceedings as may be advised against the respondent. The amount shall stand transferred to the suit account of the proposed proceedings soon after institution of the said proceedings in which event this petition will stand disposed off; (c) However, if the petitioner fails to institute the proposed proceedings against the respondent in respect of suit claim within ten weeks from ((-6-)) MST today, the respondent will be free to withdraw the amount deposited in this Court; (d) In the event the the petitioner is required to advertise admission of the present petition as aforesaid, he shall publish the advertisement in two local newspapers, namely, "Free Press Journal", "Navshakti" and in the Maharashtra Government Gazette. For that purpose, the petitioner shall deposit an amount of Rs.10,000/- (Rs.Ten Thousand only) with the Registrar (O.S.)/ Prothonotary & Senior Master towards the publication charges within three weeks from expiry of eight weeks period, failing which the petition shall stand dismissed for non prosecution without further reference to the Court. 7. At this stage the counsel for the respondent seeks stay of operation of this order so as to enable the respondent to take up the matter in appeal. Ordinarily I would have been inclined to grant stay for a period of four weeks from today. As a matter of fact, the respondent has been provided an opportunity to deposit the amount within four weeks from today. The respondent can utilise that time for preferring an appeal, if so ((-7-)) MST advised. Hence, no orders on this aspect are required. (A.M.KHANWILKAR, J.)