Case: Posco-India Pune Processing Centre Private Limited Vs. M/S. Rojee-Tasha Stampings Private Limited &amp; Others

an opportunity to consider a similar situation in respect of a company petition for winding up, and the Court held that the company cannot say that once the insurance company has paid the money to the principal creditor, then the company is not answerable to anybody. The company is still liable. The relevant part of the said judgment reads as under:In the present matter, it is to be seen that the loan was taken by the company somewhere in the year 1993 and the company which claims to be running profit making assetful company, did not discharge its liability within the statutory period despite the demand notice and the insurance company had to discharge the, Gujarat liability. The endeavour of Mr. Soparkar was to convince us that if the creditor company has already received 95 per cent of the loan amount and the insurance company has not lodged its claim against the appellant company, the court must not exercise its discretion in favour of the admission of the winding up matter. The argument is one of frustration. We are unable to understand the logic behind the said argument. It is not the case of the appellant that certain goods were insured and in lieu of the goods, the money has been paid by the insurance company to the principal creditor. In fact, the loan amount/loan transaction was insured. The Petitioner cannot say that once the insurance company has paid the money to the principal creditor, then the appellant company is not answerable to anybody. The appellant company is still liable and applying the principle of subrogation, the insurance company can always recover the money from the appellant and in any case, if the money is received by the creditor company then, to the extent of the receipts, the creditor company would refund the money to the insurance company. That would be a matter between the insurance company and the creditor company. The debtor is not entitled to take any benefits out of the said transaction.12. Therefore, as held by His Lordship Honble Shri Justice S.J.Kathawalla in Company Petition No. 294 of 2014 with whom I am in respectful concurrence, petitioner is indeed entitled to file the above company petitions against the company and the petitions as filed are maintainable in law. The only obligation that falls upon petitioner is in respect of receipt of sums from respondent which may be in excess of petitioners claim to which extent the insurance company would be entitled to seek recovery of such sums from petitioner. This, however, would be the subject matter of separate proceedings between the insurance company and petitioner and does not merit any further consideration at the stage of admission of this present Company Petition. The submissions that the claim under petition was not a debt and petitioner is not a creditor of the company but the claim is for damages and there was no ascertained liability which can be proved only in a Civil Court, in my view, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, the amount claimed, I am satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of Rs.6,07,00,000/- payable by respondent.13. It should also be noted that respondent has, in fact, made a false statement in the affidavit in reply that it came to know only in July/August having received the insurance money. The email annexed at Exh.1 to the affidavit in reply is a forwarded CC from D. M Pawar of Ganage Group (email ID : pawar@ganagegroup.com) sent to his advocate on 28th July 2015. The said D.M. Pawar has forwarded an email that he has received from one Sambhaji Shahapure on 28th July 2018 and from the email, it is seen that the said Mr. Shahapure has received the email from one Abhishek Aggarwal from Ksure on 14th June 2012 that Ksure has paid the insurance claim of petitioner. Despite being aware of the claim being settled by the insurance company, respondent-company submitted to the consent order dated 25th June 2014 and thereafter to come and told the Court by way of a consent order that respondent-company came to know only in July/August 2015 that insurance company Ksure has settled the claim of petitioner company, is ex-facie a false statement.The falsity of respondents case that it came to know in July/August 2015 is also belied by the fact that respondent had even sent an email dated 30th July 2014 to Ksure with copy to petitioner, print out of the said email is at Exh.B to the affidavit in rejoinder and that has not been denied by the company and therefore, it is quite obvious that they are making false statements.14. It should also be noted that respondent company did not even reply to the statutory notice that was sent by petitioner to respondent company. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, the respondent-company runs a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.15. It should also be noted that in the affidavit in reply, there is not even a mention that the company is commercially solvent. On the contrary, there is an email dated 30th July 2014 (Exh.B) from respondent-company to petitioner and also to Abhishek Aggrawal of Ksure that the company has been declared as nonperforming Asset and its bank account has also been frozen.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]12. Therefore, as held by His Lordship Honble Shri Justice S.J.Kathawalla in Company Petition No. 294 of 2014 with whom I am in respectful concurrence, petitioner is indeed entitled to file the above company petitions against the company and the petitions as filed are maintainable in law. The only obligation that falls upon petitioner is in respect of receipt of sums from respondent which may be in excess of petitioners claim to which extent the insurance company would be entitled to seek recovery of such sums from petitioner. This, however, would be the subject matter of separate proceedings between the insurance company and petitioner and does not merit any further consideration at the stage of admission of this present Company Petition. The submissions that the claim under petition was not a debt and petitioner is not a creditor of the company but the claim is for damages and there was no ascertained liability which can be proved only in a Civil Court, in my view, is not tenable and requires to be rejected. There is no question of the claim being in respect of damages or being unascertained in any manner whatsoever. On the contrary, the amount claimed, I am satisfied, are admittedly ascertained and due and payable by the company to petitioner. There is no dispute in respect of the admitted outstanding of Rs.6,07,00,000/payable by respondent.13. It should also be noted that respondent has, in fact, made a false statement in the affidavit in reply that it came to know only in July/August having received the insurance money. The email annexed at Exh.1 to the affidavit in reply is a forwarded CC from D. M Pawar of Ganage Group (email ID : pawar@ganagegroup.com) sent to his advocate on 28th July 2015. The said D.M. Pawar has forwarded an email that he has received from one Sambhaji Shahapure on 28th July 2018 and from the email, it is seen that the said Mr. Shahapure has received the email from one Abhishek Aggarwal from Ksure on 14th June 2012 that Ksure has paid the insurance claim of petitioner. Despite being aware of the claim being settled by the insurance company,submitted to the consent order dated 25th June 2014 and thereafter to come and told the Court by way of a consent order thatcame to know only in July/August 2015 that insurance company Ksure has settled the claim of petitioner company, isa false statement.The falsity of respondents case that it came to know in July/August 2015 is also belied by the fact that respondent had even sent an email dated 30th July 2014 to Ksure with copy to petitioner, print out of the said email is at Exh.B to the affidavit in rejoinder and that has not been denied by the company and therefore, it is quite obvious that they are making false statements.14. It should also be noted that respondent company did not even reply to the statutory notice that was sent by petitioner to respondent company. It is settled law that where no response to a statutory notice has been made, the court may pass a winding up order on the basis that amount claimed has not been denied by the company and there is a presumption of inability to pay by the company. Where no response has been made to the statutory notice, theruns a risk of winding up petition being allowed. By virtue of Section 434 of the Companies Act 1956 a presumption of the indebtedness can be legitimately drawn by the court where no reply to the statutory notice is forthcoming.15. It should also be noted that in the affidavit in reply, there is not even a mention that the company is commercially solvent. On the contrary, there is an email dated 30th July 2014 (Exh.B) fromto petitioner and also to Abhishek Aggrawal of Ksure that the company has been declared as nonperforming Asset and its bank account has also been frozen.