Shri Moolchand Kharaiti Ram Trust vs.nirulas Corner House Private Limited - Court Judgment

SooperKanoon Citationsooperkanoon.com/1218443
CourtDelhi High Court
Decided OnOct-04-2018
AppellantShri Moolchand Kharaiti Ram Trust
RespondentNirulas Corner House Private Limited
Excerpt:
$~cp-9 * in the high court of delhi at new delhi % + co.pet. 404/2014 date of decision:04. 10.2018 shri moolchand kharaiti ram trust ........ petitioner through: mr gaurav bahl and ms aakanksha kaul, advocates. versus nirulas corner house private limited. .... respondent through: ms chetanya puri, advocate. coram: hon'ble mr. justice jayant nath jayant nath, j.(oral) this petition is filed under sections 433(e), 434 and 439 of the 1. companies act, 1956 seeking winding up of the respondent company.2. the case of the parties is that the parties entered into an arrangement on 31st march, 2009 whereby the respondent were to provide food and catering services in the cafeteria, canteen and rooms to the patients, attendants, doctors etc.3. on 21.09.2012, the arrangement was further renewed with effect from 01.04.2012 and was executed for a period of two years. on 31.03.2014, no further extension was agreed upon.4. it is the case of the petitioner that the arrangement dated 21.09.2012 expired by efflux of time on 31.03.2014 and no further extension was granted to the respondent. however, respondent continued to occupy the premises without any authority to provide the services. it is also contended co.pet. 404/2014 page 1 of 6 that the respondent failed to pay the dues towards commission, water and electricity charges despite several reminders. the arrangement has ceased since 02.05.2014.5. it is stated that the sum of rs.2,95,604/- is due and payable by the respondent on account of commission, water and electricity charges along with interest at the rate of 24% per annum. a statutory notice dated 02.06.2014 was sent to the respondent. the respondent instead of clearing the dues have raised false and unwarranted issues. further it is pleaded that the respondent have also not stated in the reply filed any cogent reason for not clearing the debt due and payable.6. 7. i have heard learned counsel for the parties. learned counsel for the petitioner has relied upon annexure „d‟ to the terms of arrangement dated 21.09.2012 to show that in terms of the arrangement, the respondents were obliged to pay agreed commission of the total net sale revenue. reliance is also placed on annexure „c‟ to submit that water and electricity charges were due and payable.8. learned counsel for the respondent submits that on 02.05.2014, the entry of the respondent in the premises was blocked and they were not allowed to go in the premises. he also submits that the goods lying in the premises were forcefully thrown out from the premises. he further submits that the entire dues of the petitioner were paid uptil april, 2014. he also submits that the respondent had appointed an arbitrator and parties had gone to arbitration. however, the proceedings have come to an end on account of technical reasons stated by the learned arbitrator. he submits that in view of this fact, the appropriate remedy for the petitioner is to approach the civil court to claim his alleged dues and the present winding up proceedings are co.pet. 404/2014 page 2 of 6 misplaced.9. a perusal of the reply filed by the respondent shows that the respondent merely denies the contentions that he has not made up-to-date payment of commission. he also denies that he has not paid electricity and water charges. he further reiterates that necessary charges were paid uptil april, 2014.10. what is interesting is that the reply simply states that all the payments have been made. no further details are given in the reply. there is no attempt to point out how much payments were made and in what manner. no record is sought to be placed on record giving details of the amounts paid and the manner in which the payments were made including, cheque numbers and dates etc. the best evidence that is available with the respondent, namely, the amount of payments and other details have been hidden from the court.11. reference in this context may be had to the judgment of the supreme court in kundan lal rallaram v. the custodian, evacuee property bombay, air1961sc1316 where the court held as follows: “6. we shall now notice some relevant decisions. the privy council in murugesam pillai v. gnana sambandha pandara sannadhi: air1917pc6observed: “a practice has grown up in indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the courts the best material for its decision. with regard to third parties this may be right enough-they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is in their lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of co.pet. 404/2014 page 3 of 6 facts to withhold from the court the written evidence in their possession which would the proposition.” light upon throw 7. the same rule was reaffirmed in rameshwar singh v. bajit lal: air1929pc95and was approved by this court in hiralal v. badkulal: air1953sc225 these three decisions lay down that it is the duty of a party to a suit in possession of important documents to produce them in court, and if that duty is not discharged the court may as well draw the presumption which it is entitled to do under section 114 of the evidence act. ....” 12. it is manifest that the reply filed by the respondent is vague and evasive. there is no bonafide defence raised by the respondent. in this context reference may be had to the judgement of the supreme court in iba health (i) pvt. ltd. vs. info-drive systems sdn.bhd., (2010) (4) complj481(sc) where the supreme court held as follows:-"“17. the question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding-up for discharge of that liability?. in such a situation, is there not a duty on the company court to examine whether the company has a genuine dispute to the claimed debt?. a dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. the company court, at that stage, is not expected to hold a full trial of the matter. it must decide whether the grounds appear to be substantial. the grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. it is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding-up co.pet. 404/2014 page 4 of 6 procedure. the company court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding-up petition as a means of forcing the company to pay a bona fide disputed debt.” 13. consequently, the petition is admitted and the official liquidator attached to this court is appointed as the provisional liquidator. he is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. the citations be published in the delhi editions of the newspapers „statesman‟ (english) and „veer arjun‟ (hindi), as well as in the delhi gazette, at least 14 days prior to the next date of hearing. the cost of publication is to be borne by the petitioner who shall deposit a sum rs.75,000 /- with the official liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. the official liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him. at the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. it will also be open to the official liquidator to seek police help in the discharge of his duties, if he considers it appropriate to do so. the official liquidator to take all further steps that may be necessary in this regard to protect the premises and assets of the respondent-company.14. however, in the interest of justice, the above order appointing the official liquidator as provisional is kept in abeyance for the period of four weeks. in case, the respondent pays to the petitioner the said sum of rs.2,95,604/-, the above order appointing the official liquidator shall stand co.pet. 404/2014 page 5 of 6 revoked.15. learned counsel for the respondent seeks dasti order.16. let a copy of this order be given under signatures of the court master.17. list on 20.11.2018. jayant nath, j.october04 2018 sn/v co.pet. 404/2014 page 6 of 6
Judgment:

$~CP-9 * IN THE HIGH COURT OF DELHI AT NEW DELHI % + CO.PET. 404/2014 Date of decision:

04. 10.2018 SHRI MOOLCHAND KHARAITI RAM TRUST ........ Petitioner

Through: Mr Gaurav Bahl and Ms Aakanksha Kaul, Advocates. versus NIRULAS CORNER HOUSE PRIVATE LIMITED. .... Respondent Through: Ms Chetanya Puri, Advocate. CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J.(ORAL) This petition is filed under Sections 433(e), 434 and 439 of the 1. Companies Act, 1956 seeking winding up of the respondent Company.

2. The case of the parties is that the parties entered into an arrangement on 31st March, 2009 whereby the respondent were to provide food and catering services in the cafeteria, canteen and rooms to the patients, attendants, doctors etc.

3. On 21.09.2012, the arrangement was further renewed with effect from 01.04.2012 and was executed for a period of two years. On 31.03.2014, no further extension was agreed upon.

4. It is the case of the petitioner that the arrangement dated 21.09.2012 expired by efflux of time on 31.03.2014 and no further extension was granted to the respondent. However, respondent continued to occupy the premises without any authority to provide the services. It is also contended CO.PET. 404/2014 Page 1 of 6 that the respondent failed to pay the dues towards commission, water and electricity charges despite several reminders. The arrangement has ceased since 02.05.2014.

5. It is stated that the sum of Rs.2,95,604/- is due and payable by the respondent on account of commission, water and electricity charges along with interest at the rate of 24% per annum. A statutory notice dated 02.06.2014 was sent to the respondent. The respondent instead of clearing the dues have raised false and unwarranted issues. Further it is pleaded that the respondent have also not stated in the reply filed any cogent reason for not clearing the debt due and payable.

6. 7. I have heard learned counsel for the parties. Learned counsel for the petitioner has relied upon Annexure „D‟ to the Terms of Arrangement dated 21.09.2012 to show that in terms of the arrangement, the respondents were obliged to pay agreed commission of the total net sale revenue. Reliance is also placed on Annexure „C‟ to submit that water and electricity charges were due and payable.

8. Learned counsel for the respondent submits that on 02.05.2014, the entry of the respondent in the premises was blocked and they were not allowed to go in the premises. He also submits that the goods lying in the premises were forcefully thrown out from the premises. He further submits that the entire dues of the petitioner were paid uptil April, 2014. He also submits that the respondent had appointed an Arbitrator and parties had gone to Arbitration. However, the proceedings have come to an end on account of technical reasons stated by the learned Arbitrator. He submits that in view of this fact, the appropriate remedy for the petitioner is to approach the Civil Court to claim his alleged dues and the present winding up proceedings are CO.PET. 404/2014 Page 2 of 6 misplaced.

9. A perusal of the reply filed by the respondent shows that the respondent merely denies the contentions that he has not made up-to-date payment of commission. He also denies that he has not paid electricity and water charges. He further reiterates that necessary charges were paid uptil April, 2014.

10. What is interesting is that the reply simply states that all the payments have been made. No further details are given in the reply. There is no attempt to point out how much payments were made and in what manner. No record is sought to be placed on record giving details of the amounts paid and the manner in which the payments were made including, cheque numbers and dates etc. The best evidence that is available with the respondent, namely, the amount of payments and other details have been hidden from the Court.

11. Reference in this context may be had to the judgment of the Supreme Court in Kundan Lal Rallaram v. The Custodian, Evacuee Property Bombay, AIR1961SC1316 where the court held as follows: “6. We shall now notice some relevant decisions. The Privy Council in Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi: AIR1917PC6observed: “A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties this may be right enough-they have no responsibility for the conduct of the suit; but with regard to the parties to the suit it is in their Lordships' opinion, an inversion of sound practice for those desiring to rely upon a certain state of CO.PET. 404/2014 Page 3 of 6 facts to withhold from the Court the written evidence in their possession which would the proposition.” light upon throw 7. The same rule was reaffirmed in Rameshwar Singh v. Bajit Lal: AIR1929PC95and was approved by this Court in Hiralal v. Badkulal: AIR1953SC225 These three decisions lay down that it is the duty of a party to a suit in possession of important documents to produce them in court, and if that duty is not discharged the court may as well draw the presumption which it is entitled to do under Section 114 of the Evidence Act. ....” 12. It is manifest that the reply filed by the respondent is vague and evasive. There is no bonafide defence raised by the respondent. In this context reference may be had to the judgement of the Supreme Court in IBA Health (I) Pvt. Ltd. vs. Info-Drive Systems Sdn.Bhd., (2010) (4) CompLJ481(SC) where the Supreme Court held as follows:-

"“17. The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding-up for discharge of that liability?. In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt?. A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding-up CO.PET. 404/2014 Page 4 of 6 procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding-up petition as a means of forcing the company to pay a bona fide disputed debt.” 13. Consequently, the petition is admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers „Statesman‟ (English) and „Veer Arjun‟ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. The cost of publication is to be borne by the petitioner who shall deposit a sum Rs.75,000 /- with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. The Official Liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him. At the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. It will also be open to the Official Liquidator to seek police help in the discharge of his duties, if he considers it appropriate to do so. The Official Liquidator to take all further steps that may be necessary in this regard to protect the premises and assets of the respondent-company.

14. However, in the interest of justice, the above order appointing the Official Liquidator as provisional is kept in abeyance for the period of four weeks. In case, the respondent pays to the petitioner the said sum of Rs.2,95,604/-, the above order appointing the Official Liquidator shall stand CO.PET. 404/2014 Page 5 of 6 revoked.

15. Learned counsel for the respondent seeks dasti order.

16. Let a copy of this order be given under signatures of the Court Master.

17. List on 20.11.2018. JAYANT NATH, J.

OCTOBER04 2018 sn/v CO.PET. 404/2014 Page 6 of 6