M. Venkataraman Vs. Seven H. Logistics Private Limited, Bangalore - Court Judgment

Excerpt:

.....liability of their obligation to pay a sum, there is no explanation forthcoming as to why this amount was withheld and it is only under pressure of this winding up petition that the petitioner has been able to extract the said amount - this would not auger well for the respondent and indicates its attitude in having denied the petitioner €™s just claim - however, insofar as the other claims of the petitioner is concerned, there is certainly a grey area which would necessarily require to be adjudicated and admittedly, the parties having also entered into an arbitration agreement, would require the matter to be referred to arbitration, which the petitioner indeed desires - hence, the matter is referred to arbitration - claims which are not admitted by the respondents, are certainly matters which require to be adjudicated before the appropriate forum - petition dismissed. (para 2, 4) comparative citation: 2015 (5) kantlj 95, .....and other benefits were also spelt out. it is claimed that the petitioner diligently worked for the company in terms of the arrangement and he was paid as salary from december 2011 to january 2012 at rs. 4,00,000/- per month. however, he was paid only rs. 2,80,000/- and it was informed that rs. 1,20,000/- is adjusted towards the tax deduction at source. it was the petitioner's claim that he was not paid for the months of february 2012 to april 2012 by the respondent. there was exchange of correspondences in this regard and despite repeated demands, there was no payment. under the arrangement, it was also agreed that the company was to have offered 10% of its share capital by 31-12-2011 and another 10% by 31stdecember, 2012. the valuation for the purpose of allotting the shares is said to have been rs. 70,00,000/- for the 20% of the shares in the company irrespective of the dates of allotment. under the arrangement, it also provided that an initial 10% was to have been paid to the petitioner in instalments. this was never forthcoming and it is in this background that the petitioners had issued a statutory notice after other modes of exchange of notices failed to evoke any.....

Judgment:

1. Heard the learned Counsel for the petitioner and the learned Counsel for the respondent.

2. The petitioner is a management professional and the respondent is a private limited company. It transpires that the Managing Director of the respondent-company and the petitioner were friends. However, the petitioner is said to have entered into an agreement with effect from 1-12-2011. The petitioner was said to have been inducted into the Board of Directors as a whole time Director with a remuneration of Rs. 10,00,000/- per month. In terms of the agreement, he was to have been paid Rs. 4,00,000/- per month initially upto the end of May 2012 and subsequently, he would be entitled to full remuneration as stated, along with arrears for the earlier period. The memorandum of understanding also provided that the petitioner would acquire 20% stake in the respondent in a phased manner and other benefits were also spelt out. It is claimed that the petitioner diligently worked for the company in terms of the arrangement and he was paid as salary from December 2011 to January 2012 at Rs. 4,00,000/- per month. However, he was paid only Rs. 2,80,000/- and it was informed that Rs. 1,20,000/- is adjusted towards the tax deduction at source. It was the petitioner's claim that he was not paid for the months of February 2012 to April 2012 by the respondent. There was exchange of correspondences in this regard and despite repeated demands, there was no payment. Under the arrangement, it was also agreed that the company was to have offered 10% of its share capital by 31-12-2011 and another 10% by 31^stDecember, 2012. The valuation for the purpose of allotting the shares is said to have been Rs. 70,00,000/- for the 20% of the shares in the company irrespective of the dates of allotment. Under the arrangement, it also provided that an initial 10% was to have been paid to the petitioner in instalments. This was never forthcoming and it is in this background that the petitioners had issued a statutory notice after other modes of exchange of notices failed to evoke any positive response from the respondents, under Section 433 (e) read with Section (1) (a) of the Companies Act, 1956.

However, the respondent did not reply to the notice in the wake of which the present petition is filed. The petitioner's claims against the respondents are shown herein in Tabular column:

Sl No.	Item	Original Amount Rs.	Interest at the rate p.a. till 31-10-2012 Rs.	Total mount due as on 31st October, 2012 Rs.
A-1	SHARE MONEY	11,71,500	1,58,153	13,29,653
A	TOTAL SHARE MONEY DUE	11,71,500	1,58,153	13,29,653
B-1	Salary Arrears- December 2011	6,00,000	90,000	6,90,000
B-2	Salary Arrears- January 2012	6,00,000	81,000	6,81,000
B-3	Salary Arrears- February 2012	10,00,000	1,20,000	11,20,000
B-4	Salary Arrears- March 2012	10,00,000	1,05,000	11,05,000
B-5	Salary Arrears- April 2012 (17 days)	5,70,000	51,300	6,21,300
B	TOTAL SALARY DUE	37,70,000	4,47,300	42,17,300
C-1	OTHERS- Unpaid Travel Bill	14,157	-	14,157
C	TOTAL OTHERS DUE	14,157	-	14,157
A+B+C	GRAND TOTAL DUE	49,55,657	6,05,453	55,61,110

As against the said contentions and claims, the respondents in their statement of objections, have resisted the petition on several grounds except admitting the share amount of Rs. 11,71,500/- in respect of which a demand draft is now handed over, the receipt of which is acknowledged. It is thereafter in furtherance of the statement of objections contended that all other claims set up by the petitioner are disputed and in fact the petitioner has invoked an arbitration clause and this would clearly indicate that the dispute is bona fide and would have to be adjudicated. Primarily, it is pointed out that the arrangement between the petitioner and the respondent was in the nature of a quasi charge and the payments and remunerations to be made to the petitioner was contingent upon progress being made in terms of the assurances held out by the petitioner and that was yet to come about and therefore, it is only the initial payment towards the shares which has been admitted and which has been honoured by now paying the amount. Therefore, he would submit that a closer reading of the memorandum of understanding would certainly indicate that the petitioner would not be in a position to claim that there was concluded contract whereby the claim of the petitioner could not be denied by the respondents. The arrangement was executory in nature and since there was no further progress even according to the petitioner on account of various circumstances and exigencies, it is a case which requires to be adjudicated before the appropriate forum and hence, seeks dismissal of the petition.

3. The learned Counsel for the petitioner however would insist that insofar as the initial payment of Rs. 4,00,000/- per month, was unconditional and the fact that the respondents have paid Rs. 4,00,000/- per month upto January 2012 would indicate that it is not disputed and they were liable to pay the said sum upto May 2012. It is not the case of the respondent that the petitioner did not continue to perform in terms of the arrangement, till May 2012.

Though it is denied by the respondents in their statement of objections to claim that he has been irregular in performing his services beyond January 2012, the learned Counsel would seek to draw attention to other material that has been produced along with the petition to substantiate this contention.

4. Though in the above circumstances, the respondents having admitted a limited liability of their obligation to pay a sum of Rs. 11,71,500/-, there is no explanation forthcoming as to why this amount was withheld till today and it is only under pressure of this winding up petition that the petitioner has been able to extract the said amount. This would not auger well for the respondent and indicates its attitude in having denied the petitioner's just claim. However, insofar as the other claims of the petitioner is concerned, there is certainly a grey area which would necessarily require to be adjudicated and admittedly, the parties having also entered into an arbitration agreement, would require the matter to be referred to arbitration, which the petitioner indeed desires. Hence, the matter is referred to arbitration.

Therefore, the claims which are not admitted by the respondents, are certainly matters which require to be adjudicated before the appropriate forum. Without prejudice to the claims made by the petitioner and without prejudice to his right to claim interest on even the amount that has been admitted and now paid, the petition stands dismissed.