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Judgment
Date,Amount,Transferred from the Account
23.02.2012,"10,00,000",Santosh Jain
24.02.2012,"40,00,000","Petitioner (Payment transferred by
Petitioner on behalf Santosh Jain
and there was no agreement
between the Petitioner and
Respondent. Even though,
Respondent is not aware as to what
terms were finalized between the
Petitioner and Santosh Jain for
transferring the said amount)
,,"Ganpati Stocks Private Limited and
Santosh Jain for transferring the
said amount.)
09.03.2012,"10,00,000",Santosh Jain
XXI. That on the same day, Investor (Santosh Jain) vide his email forwarded invoices issued by Industrial Electrical in the name of CJML to the",,
Director of Respondent for immediate payment. It is submitted that Investor (Santosh Jain) himself invested the said amount by purchasing certain,,
store material by giving instructions to Baba Talluri, however, no specific instructions was given by the Directors of the Respondent to purchase the",,
said store material, inspite of the said position. Investor (Santosh Jain) was forwarding the bills to the Directors of the Respondent. Copy of e-mail",,
dated 28.03.2012 along with attachments are collectively marked and annexed herewith as Annexure R-13 (Colly) to the present reply.,,
XXII. In March 2012, Director of the Respondent purchased some raw jute material from one M/s Krishna Jute Co. for a sum of Rs.8 lakhs and the",,
said payment was duly paid on 30.11.2012 through RTGS. The payment is duly reflected in the bank statement of the Respondent, which is annexed",,
hereinabove.,,
XXIII. In April 2012, on account of some disputes and differences raised by the Original Owners (CJML) with respect to signatures on MOU dated",,
06.02.2012 and Possession Letter dated 07.03.2012, the Original Owners (CJML) filed a civil suit being CS (OS) No.923/2012 before the Hon'ble",,
High Court of Delhi inter alia seeking declaration to declare the MOU and possession letter to be null and void. However, the Hon'ble Court directed",,
the Registry to sent the documents for comparison of signatures to FSL. The report submitted by FSL was in favour of the Directors of the,,
Respondent, which is marked and annexed herewith as Annexure R-14 to the present reply.",,
XXIV. That on 11.04.2012, the Hon'ble High Court of Delhi vide its order directed both the parties to maintain status qua title and possession of the",,
suit property. However, it was also recorded in the said order that Directors of the Respondent are controlling the CJML from outside. The factum of",,
filing of suit by the Original Owners and subsequent developments were in the knowledge of the Investor (Santosh Jain).,,
XXV. That on 03.05.2012, Investor (Santosh Jain) vide his email sent two account balance with respect to Petitioner and Ganpati Stocks Private",,
Limited, which is to be signed by the Respondent along with affixing rubber stamp, thereby confirmation the balance. The said account balance was",,
forwarded by the Investor (Santosh Jain) on the pretext that the signature is required only for the accounting purposes not for confirming the loan. The,,
same was collected by Investor (Santosh Jain) during his meeting with the Directors of Respondent at New Delhi without any demur. Copy of the,,
email dated 03.05.2012 along with attachments are collectively marked and annexed herewith as Annexure R-15 (Colly) to the present reply.,,
XXVI. That it may be noted that the said balances were signed by Mr. Vishal Chand Bothra in his individual capacity and not on behalf of,,
Respondent, since, no rubber stamp was affixed on the said account balance. Further, it is submitted that closing balances of the Petitioner and",,
Ganpati Stocks Private Limited cannot be construed as acknowledgment of debt against the Respondent, which is known to law.",,
XXVII. That since, the Investor (Santosh Jain) was fully aware about the pending litigation between the Directors of the Respondent and Original",,
Owners of the jute mill, the Investor (Santosh Jain) with his malafide intention on 16.06.2014, filed a private complaint along with application under",,
Section 156(3) of Cr.P.C. before the Hon'ble High Court of ACMM, Kolkata seeking directions against the police authorities to register an FIR",,
against the Directors of the Respondent and Mr. Sohan Lal Kochar (Chartered Accountant of the Respondent). Hon'ble Court vide its order directed,,
the authorities to treat the complaint as FIR. Copy of the complaint filed by Complainant and FIR lodged by the police authorities are collectively,,
marked and annexed herewith as Annexure R-16 (Colly) to the present reply.,,
XXVIII. That on 22.06.2014, an FIR was registered against the Directors of the Respondent and Chartered Accountant of the Respondent. It is",,
submitted that the Investor (Santosh Jain) admitted transferred the amount 20.00 Lacs in the account of Respondent for becoming director in CJML,,
and has also purchased the store material in CJML for a sum of Rs.4,17,018/-; however, a FIR was registered in the name of Directors of the",,
Respondent and Chartered Accountant in their individual capacity. It is important to note that the Investor (Santosh Jain) deliberately did not disclose,,
the present petition neither before the Police Authorities nor before the Hon'ble Court ACMM, Kolkata. It is submitted that Investor (Santosh Jain)",,
has suppressed the material facts from this Hon'ble Court and are trying create undue pressures upon the Respondent by filing frivolous petition,,
before this Hon'ble Court in order to dilute his investment made in CJM.,,
XXIX. That the Directors of the Respondent along with Chartered Accountant applied for anticipatory bail before the Trial Court, however, the said",,
bail was declined and upon approaching the Hon'ble High Court of Kolkata, Hon'ble High Court granted bail to the Chartered Accountant. Finally,",,
Hon'ble Supreme Court of India has granted anticipatory ail to the Directors of the Respondent. Copy of the order dated. 10.07.2015 and 21.08.2015,,
passed by the Hon'ble Supreme Court in SLP (Crl.) No.4201 of 2015 are collectively marked and annexed herewith as Annexure R-17 to the present,,
reply.,,
XXX. That the intention behind filing the present petition is clear from the Letter of Authority issued by the Petitioner in favour of Investor (Santosh,,
Jain) (which is filed by the Investor (Santosh Jain) during the mediation proceedings) to represent the Petitioner in the present winding up proceedings.,,
It is submitted that the above letter of authority clearly shows that there must be some agreement or arrangement between the Petitioner and Investor,,
(Santosh Jain) with respect to transfer of amount of the Respondent, which has neither never disclosed to the Respondent nor before this Hon'ble",,
Court. The above fact shows that there is a calculated conspiracy and collusion between the Petitioner and Investor (Santosh Jain) against the,,
Respondent to malafidely extort the Respondent on the verge on winding up petition. Copy of the Letter of Authority filed by Santosh Jain (Investor) is,,
marked and annexed as Annexure R-18 to the present reply.,,
The response of the respondent No.2-company inter alia reflects that the money lent by the petitioner to the respondent-company is under bona fide,,
dispute which in the considered opinion of this court would not squarely fall within the definition of “Debt†to expose respondent-company to the,,
rigors of winding up process under 1956 Act. For this purpose, reliance is placed on the decision of the Apex Court in Mediquip Systems Pvt. Ltd. Vs.",,
Proxima Medical System GMBH (AIR 2005 SC 4175), relevant paras of which are reproduced below:-",,
“18. This Court in catena of decisions held that an order under Section 433(e) of the Companies Act is discretionary. There must be a debt due and,,
the company must be unable to pay the same. A debit under this section must be a determined or a definite sum of money payable immediately or at a,,
future date and that the inability referred to in the expression 'unable to pay its dues' in Section 433(e) of the Companies Act should be taken in the,,
commercial sense and that the machinery for winding up will not be allowed to be utilized merely as a means for realising debts due from a company.,,
The respondent is not a creditor and the appellant is not a debtor in so far as US $ 11000 is concerned. The defence raised by the appellant is a,,
substantial one and not merely moonshine which is to be finally adjudicated upon on merits before the appropriate Forum.,,
Section 433 of the Companies Act says,",,
“A company may be wound-up by the Court-,,
(a) .....................,,
(b) .....................,,
(c) .....................,,
(d) .....................,,
(e) if the company is unable to pay its debts;,,
(f) .....................,,
From the above it follows:,,
(1) There must be a debt; and,,
(2) The company must be unable to pay the same. An order under Clause (e) is discretionary.,,
The debt under Section 433 of the Companies Act must be a determined or a definite sum of money payable immediately or at a future date. WE,,
are informed that the financial position of the appellant is sound.,,
This apart, both, the learned single Judge and the Judges of the Division Bench have granted interim relief which can be granted only in aid of, and",,
as a ancillary to the main relief which may be available to the party on final determination of its rights in a suit or proceedings.,,
The Bombay High Court has laid down the following principles in Softsule (P) Ltd. Re, (1977) 47 Com. Cases 438 (Bom):",,
“Firstly, it is well settled that a winding up petition is not legitimate means of seeking to enforce payment of a debt which is bona fine disputed by",,
the company. If the debt is not disputed on some substantial ground, the Court/Tribunal may decide it on the petition and make the order.",,
Secondly, if the debit is bona fide disputed, there cannot be “neglect to pay†within the meaning of Section 433(1)(a) of the Companies Act, 1956.",,
If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is",,
not substantiated.,,
Thirdly, a debt about the liability to pay which at the time of the service of the insolvency notice, there is a bona fide, is not 'due' within the meaning of",,
Section 434(1)(a) and non-payment of the amount of such a bona fide disputed debt cannot be termed as 'neglect to pay†the same so as to incur the,,
liability under Section 433(e) read with Section 434(1)(a) of the Company Act, 1956.",,
Fourthly, one of the considerations in order to determine whether the company is able to pay its debts or not is whether the comp;any is able to meet",,
its liabilities as and when they accrue due. Whether it is commercially solvent means that the comp;any should be in a position to meet its liabilities as,,
and when they arise. “,,
The debt in question being a disputed one and not admitted one cannot be taken as legitimate ground for initiating winding up proceedings.,,
In view of the above, this court refrains from going into the other grounds.",,
Accordingly, the present petitions deserve to be and are therefore dismissed.",,
No cost.,,