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High Court Of Delhi
V.K.JAIN - Appellant
Versus
RICHA LABORATORIES PRIVATE LIMITED - Respondent
Company 159 of 1988
Decided On : 04/20/1993
COMPANY WINDING UP - SECTION 434 OF THE COMPANIES ACT - FACTUAL DISPUTE - BONA FIDE DISPUTE - SUIT FOR RECOVERY - INTEREST ON OUTSTANDING BALANCE - PRESUMPTION OF INABILITY TO PAY DEBTS - PUBLICATION OF CITATIONS - DISMISSAL OF PETITION WITH LIBERTY TO PURSUE REMEDY FOR INTEREST IN SUIT.
Fact of the Case:
Petitioner filed a petition for winding up of the respondent company alleging non-payment of dues despite a notice of demand under Section 434 of the Companies Act. The respondent resisted the petition on various grounds, including the existence of a bona fide dispute about the claim, fabrication of the notice, and interpolation of a letter confirming the balance.
Finding of the Court:
The court found that the respondent's pleas were without merit and that there was a presumption in favor of the petitioner and against the respondent that the respondent was unable to pay its debts. The court also held that the filing of a suit by the petitioner would not non-suit him in the present case.
Issues: 1. Whether there existed a bona fide dispute about the claim of the petitioner? 2. Whether the notice of demand under Section 434 of the Companies Act was fabricated? 3. Whether the letter confirming the balance was interpolated? 4. Whether the petitioner was entitled to charge interest at the rate of 18% p.a. on the outstanding balance?
Ratio Decidendi: 1. The court held that the respondent's pleas were without merit and that there was a presumption in favor of the petitioner and against the respondent that the respondent was unable to pay its debts. 2. The court held that the respondent's plea that the notice of demand was fabricated was malafide and false. 3. The court held that the respondent's plea that the letter confirming the balance was interpolated was not supported by any evidence. 4. The court held that in the absence of evidence, it could not be concluded that the petitioner was entitled to charge interest at the rate of 18% p.a. on the outstanding balance.
Final Decision: The court admitted the petition and directed that citations be published in three newspapers. The court further directed that if the respondent paid the amount due minus the interest claimed within two months from the date of the judgment, the citations would not be published. In case the principal amount due was paid, the petition would stand dismissed with liberty to the petitioner to pursue his remedy with regard to interest in the suit instituted by him.
( 1 ) THIS is a petition filed by the petitioner againstthe respondent company alleging that the respondent company is indebted tothe petitioner to the tune of Rs. 3,15,165. 00which the respondent companyfailed to pay despite a notice of demand dated 25/03/1988 undersection 434 of the Companies Act having been served on the company. It isfurther pointed out that the company kept on shifting its Registered Officewithout filing any return with the Registrar of Companies and that a noticewas ultimately served on 21/05/1988. Despite such service the respondentcompany did not pay the dues of the petitioner nor took any steps tocompound the dues.
( 2 ) THE petition was resisted on various ground which have beenrefuted by the petitioner in the rejoinder. The respondent has alleged thatthere exists a bonafide dispute about the claim of the petitioner. Therespondent while disputing the liability and delivery of goods the price whereof is claimed by the petitioner has taken the plea that the respondentreceived licence to manufacture pharmaceuticals by the Drug Control andlicencing Authority, Delhi only on 13. 5. 1986 whereas all the bills on thebasis whereof the present action has been initiated relate to period prior tomay 1986. The respondent has denied having been supplied any basic drugsby the Manufacturer through the petitioner. This plea, as would appearfrom what is noticed hereinafter is without any merit. The respondent hasalso raised a plea that the notice was fabricated and no statutory notice hadbeen served. However, this plea at the time of arguments was given up bythe Counsel for the respondent on being confronted with the A. D. card. Inany event. I must notice that this plea on the face of the record is malafideand false. Another objection raised by the respondent is that the letter ofbalance confirmation signed by Mr. A. K. Racharya is fabricated inasmuchas the said letter was given on 26/10/1985 by Mr. A. K. . Racharaya inhis capacity as sole propreitor of Richa Laboratories which is alleged to behis sole propreitorship concern. It is alleged that the date on this letter hasbeen changed from 26. 10. 85 to 26. 12. 85 only to bring the petitioner s claimwithin the period of limitation, with regard to the stamp of the respondentcompany, Counsel stated that the petitioner Mr. Vijay Kumar Jain, proprietorof v. Parkash and Company was also one of the Directors of the respondentand in that capacity he had in his possession a rubber stamp of the companyand such stamp was affixed by Mr, Jain himself after interpolating the datethereon. I may note that although this letter is being attributed to the soleproprietorship concern which is alleged to be different from the Respondentcompany, yet the carbon copy of the original was produced by therespondent s Counsel from the respondents custody. Furthermore, noexplanation is forthcoming as to how the respondent was in possession of thecarbon copy of the letter dated 26. 12. 85 when according to them this letterdid not pertain to the company and had been forged and fabricated by thepetitioner by altering the date and also by affixing the rubber stamp of thecompany. It was further stated that the proprietory concern was changed to apartnership and the assets and liabilities of the partnership were taken overby the respondent Company. The petitioner has also refuted the plea ofinterpolating the letter confirming the balance. It was pointed out that if theletter had been signed in October 1985 the balance amount would have beenonly Rs. 1. 75,165. 00which was the debit balance upto 26/10/1985. The amount of Rs. 3,50. 000. 00 was the debit balance on 26. 12. 85 only, in thelight of this I feel that the correction of date, if any, must have been carriedout by Mr. Racharya himself.
( 3 ) NEXT it was contended that the petitioner has already instituted asuit for the recovery of the amount referred to in the,present petition and assuch that matter will be done into on its own merits af
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