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Judgment
G.D. Kamat, J.—These two petitions are disposed of by a common order as the facts are similar and otherwise raise questions which are identical.
The petitioner claims to he a creditor of the company in the following circumstances. In Company Petition No. 18R of 1992, the petitioner claims a sum of Rs. 37,050 as arrears of rent In respect of two residential flats which had been granted on lease to the company, being the arrears of rent from June, 1989, to July, 1992. In addition to the arrears of rent a sum of Rs. 2,024,70 has been claimed by way of municipal taxes due and payable in respect of the demised flats and a further sum of Rs. 455 for water and electricity consumption charges, thus making a sum in an amount of Rs. 39,529.70.
In Company Petition No. 17N of 1992, the petitioner claims a sum of Rs. 20,081.20 as follows
Rs.
Arrears of rent from June, 1989, to July, 1992, being
19,760.00
By way of municipal taxes
1,250.20
For water and electricity consumption
106.00
The claim is for arrears of rent in respect of flat No. 7 which was let out to the company in the same building known as "Estrela" situate at Baina, Vasco da Gama. The story of the matter is that once the company had fallen into arrears of rent, proceedings were instituted before the Rent Controller for recovery of possession of three flats on the grounds of non-payment of rent. Despite service of the notice, the company did not contest the proceedings, nor deposited the arrears of rent. The result, was the Controller made an order dated May 6, 1992, u/s 32(4) of the Rent Control Act directing the company to vacate the aforementioned flats. It is common ground that the company vacated the flats in question on August 7, 1992. Thereupon notices u/s 434 of the Companies Act were served upon the company and the present petition for winding up came to be instituted in this court.
It may be mentioned that in the reply to the notice of the petitioner u/s 434 of the Companies Act, 1956, the respondent-company made a claim, a sort of counter-claim, claiming a sum of Rs. 48,350 against the petitioner on the grounds that the company had expended that amount carrying out repairs to the suit flat from time to time during the subsistence of the tenancy. This claim is made in respect of Company Petition No. 18-R of 1992. Similar is the situation in the other Petition No. 17-N of 1992, where the company has made a claim against the petitioner that the petitioner is liable to pay to them a sum of Rs. 26,280 for the expenditure made by the company for carrying out repairs from time-to-time in respect of the demised flats. The same is the stand now taken up in opposing the present winding up proceedings. The company in their affidavit filed through one of its officers have also mentioned that before Controller passed any order directing their eviction u/s 32(4) agreement was reached on behalf of the company on one side and the petitioner on the other, that the company would not contest the proceedings of eviction and there would be adjustment of the arrears of rent as against the claim for expenses towards the maintenance and repairs made by the company from time to time.
It was urged on behalf of the company by Shri Kavlekar, learned counsel, that the present petition is nothing but pressure tactics to somehow pressurize the company in recovering the arrears of rent when admittedly there is a bona fide claim of the company against the petitioner when the company spent a large amount of money for keeping the demised premises in tenantable repairs from time to time. He also urged that the expenditure that was made by the company from time to time is very well informed/instructed by several bills and vouchers which indeed point out without any suspicion that the company did incur the expenditure of carrying out the repairs to the demised premises and, therefore, the claim made by the company against the petitioner is not only genuine, but also bona fide and, therefore, at the most the petitioner ought to be relegated to the suit and not given relief in the present petition for winding up.
I have considered the matter and what is required to be seen is that on failure of the company to pay the rent proceedings were instituted against the company for its eviction from three residential flats in the building known as "Estrela" belonging to the petitioner. The story of the matter indicates that though the company was served and at some stage appearance was filed, thereafter the proceedings were given up. The common order of the Controller on record does suggest that several adjournments were given to the company and nothing was done in the matter. Admittedly, if the company wanted to contest the proceedings, the company was required to deposit the amount of arrears and continue to pay the rent falling due from month to month in terms of section 32 of the Rent Control Act read with rule 5 of the rules. However, what is relevant to see is that there is no whisper that the company had ever expended any money in the matter of keeping the premises in tenantable repairs. That apart, there is no correspondence whatsoever between the parties to suggest that there was any authority for such action. For the first time, a sort of counter-claim was made when the petitioner issued a notice u/s 438 of the Companies Act, 1956, and, for that matter, when defences were filed in the present cases opposing the winding up. Prima facie what is due and payable to the petitioner indeed cannot be disputed as it is on account of non-payment that the Controller has finally passed the orders directing eviction of the company. I am aware that the existence of a valid counter-claim would constitute reasonable excuse for non-payment and for dismissal of the petition for winding up, but I do not think that such case is made out by the company in the present proceedings. If they have any genuine claim against the petitioner, they are at liberty to file appropriate suits against the petitioner within six months from today. Regard being had to the claim which is in fact arrears of rent in respect of three premises, I do not think that this court should relegate the petitioner to any suit. The respondent-company is directed to deposit the amount claimed in the petitions on or before April 30, 1993, and upon such a deposit, the petitions to stand accordingly disposed of. In the event, the company does not deposit the amount on or before April 30, 1993, the petitions to stand admitted and advertisement to follow. Upon deposit of the money in this court, the registry is directed to pay the same to the petitioner requiring him to execute a simple bond as provided in the Code of Civil Procedure, 1908. The bond shall stand discharged in the event suits are not filed within a period of six months as directed above.