1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.715 OF 2002 M/s.Status Video (Sole Proprietress: Mrs.Sushila Bhatia) .. Petitioners Vs. Reminiscent India Television Ltd. (RITV) ... Respondents Mr.Nimish Desai a/w Ms.Naina Desai for the petitioners Ms.Alisha Lambay i/by M/s.Lambay and Co. for the respondents CORAM : S.J. VAZIFDAR, J. DATED : 27th JULY, 2010 P.C.: 1. This is a petition for winding up the respondent company inter alia on the ground that it is unable to pay its debts. 2. The petition is filed by M/s.Status Video (Sole Proprietress: Mrs.Sushila Bhatia). It is stated in the petition that the petitioners are the sole proprietary firm of the said Mrs.Sushila Bhatia carrying on business in the name and style of M/s.Status Video. This is an aspect of some importance, as admittedly, the agreement dated 08.08.2000 on the basis of which the claim in the petition arises was signed by the said 2 Mrs.Sushila Bhatia s son Mr.Satyen Bhatia. It is now also admitted ’ that it is Mr.Satyen Bhatia and not Mrs.Sushila Bhatia who is the sole proprietor of M/s.Status Video and that the actual contracting party was Mr.Satyen Bhatia. It was therefore, submitted on behalf of the company that the petition is not maintainable by Mrs.Sushila Bhatia. I will deal with this contention last. 3. Under the agreement, the respondent was to be supplied television episodes produced by the proprietory firm. There is no dispute that 28 episodes were prepared and handed over to the respondent. The same pertains to two serials. 4. The defence that the serial was not of the requisite quality and that they were overpriced inspires little confidence. There was no reply to the statutory notice dated 27.02.2002. The respondent in its reply dated 28.3.2002 merely stated that it was taking instructions to reply and there was only a general denial of what was stated in the statutory notice. The Company Petition was filed on 27.02.2002. Till then, there was no further reply. The defence in this regard is therefore, merely an afterthought. 5. Nor do I find the defence regarding the alleged collusion between certain erstwhile directors of the respondents and the petitioner firm bona fide. 3 6. There is nothing on record except the bare averments in this regard in the affidavits. The mere fact that in certain criminal proceedings, the two directors who had signed the agreement on behalf of the respondents were not impleaded, would not establish collusion between the petitioner firm and the said directors. The complaint was filed against the Chairman and Managing Director of the respondents. There is no correspondence between the respondent company and the said directors alleging collusion. Nor has the respondent adopted proceedings against the said erstwhile directors. The defence therefore, is not bona fide. 7. The third defence is that the petition is filed by the wrong person in as much as Mrs.Sushila Bhatia is shown to be the sole proprietor of the petitioner firm whereas it is her son Mr.Satyen Bhatia who is the proprietor of the said firm. Had the matter ended, this defence would have entailed a dismissal of the petition. 8. The matter however, does not rest there. It is important to note an order dated 6.2.03 passed in this Company Petition. Paragraphs 1, 2 and 3 thereof read as under:- Learned counsel appearing for the respondent states that “ the respondent is willing to pay to the petitioner the amount of 4 principal i.e. Rs.15,33,000/- by nine equal monthly installments. He further states that the first installment shall be paid on or before 10th March 2003 and the installments of succeeding month shall be paid on or before 10th of each calender month. The learned counsel appearing for the petitioner has no objection to the disposal of the petition in the following terms in case the payment is made. 2. In case the respondent produces before the Company Registrar a document which will conclusively prove that the respondent has paid to the petitioner the amount as per the statement made by the learned counsel for the respondent within one week of the expiry of the period allowed for making payment by installment, this company petition shall stand disposed of. 3. In case no such proof is produced by the respondent or in case the petitioner files an affidavit before the company Registrar with a copy to the respondent that the respondent has committed any default in making payment of installment as per the above statement of the learned counsel for the respondent, this company petition shall stand admitted without any further reference to this Court. In that event, it shall be made returnable on the date to be nominated by the Company Registrar.” 5 9. The respondent admittedly paid the first installment. The cheque for the second installment was dishonoured. The remaining installments were not paid. By an order dated 15.09.03, it was recorded that there was a default in paying the installments and the petition was made returnable on 8.12.03. The Company was represented by an advocate even when this order was passed. 10. It would have been open to the respondent to challenge the maintainability of petition on this ground, had the petition been admitted without the respondent having agreed to pay the amounts to the petitione. What is important is that the respondent agreed to pay the amount of Rs.15,33,000/- which was only the principal amount in 9 monthly installment irrespective of the defences that were available to it. Based on this, the respondent induced the petitioner to accept a lower amount and also induced the court to pass an order dated 6.2.03. The agreement to pay as recorded in the order dated 6.2.03 was unconditional. Having done so, it is not open for the respondent now to go back on its word. 11. It would also be unfair to the petitioners to permit this defence regarding the maintainability of the petition at this stage after the respondent expressly agreed to pay the amounts recorded in the order dated 06.02.2003. The law does not prohibit such an agreement viz. payment by the debtor to another at the instance of the creditor. At 6 the highest, the respondents can insist on a discharge from the creditor viz. the said Satyen. Had the respondents not agreed to pay the amounts at the relevant time, the petitioner would have been able to take remedial measures. By having failed to raise the contention and in any event by having agreed expressly, irrespective of anything, to pay the said amount to the petitioner, the respondent induced the petitioner firm and the said Satyen to alter their stand to their detriment irretrievably. 12. The respondent filed Company Application No.348 of 2006 in January 2006 for recalling the order. It is significant that the present directors who have raised the above defence were aware of the proceedings as well as the above facts latest by May 2004 when they were served with the process in the criminal complaint. They did nothing for two years which also establishes that the defence is an after thought. 13. It was contended that the erstwhile directors had colluded with the petitioner even in agreeing to the order dated 6.2.03. 14. Here again, it is surprising to note that no correspondence had been addressed to the erstwhile directors by the present directors. There is not even an enquiry from the present directors with the erstwhile advocates as to who gave instructions at the material time. The allegation regarding collusion therefore is not bona fide. The fact that 7 there may be disputes between the members and board of directors inter se is immaterial. The petitioner is not concerned with the same. 15. The contentions that the affidavit verifying the petition is not in conformity of Rule 21 of Company Court Rules, 1959 is also rejected for the same reason. 16. The respondents were permitted to rely upon the affidavits filed in Company Application No.348 of 2006 and 593 of 2007 and Company Application No.686 of 2005. The petitioner was permitted to proceed on the basis of denials. 17. The Company Petition is made absolute in terms of prayer clause (a) and (b). The petitioners shall be entitled to costs fixed at Rs.10,000/- which may be recovered in the winding up proceedings. This order is stayed upto and including 30.09.2010 to enable the respondents to challenge this order