B PRABHU Vs. BASARASS BIOCON INDIA PRIVATE LIMITED

JUDGEMENT

(1.) This petition under Sections 433(e) and (f) read with Section 434(1)(a) and 1(c) and Section 439(1)(b) of the Companies Act, 1956, has been filed for winding up of the respondent company.

(2.) The respondent herein is a private limited company. The petitioner herein was one of the Directors of the company, the others being O.R. Murugadass and Jaishankar. Disputes arose among the shareholders of the company. It is stated that the petitioner was one of the Directors of the respondent company along with one Murugadoss and Jaishankar. It is stated that disputes arose among the shareholders of the company as regards the conduct of the affairs of the company, which resulted in a Memorandum of Understanding. Admittedly, certain borrowings were there by the company from creditors arranged by the petitioner too. In terms of the minutes of the meeting dated 24.3.2009, the Memorandum of Understanding was reduced to writing dated 8.4.2009 between the company and one of the Directors Murugadass on the one side and the petitioner on the other side. The petitioner and Jaishankar agreed to transfer their entire shareholding in the company to the said Murugadass or to any other company identified by the said person, after getting No Objection letter from the banking creditors of the company. To that end, it was agreed that the petitioner and the said Jaishankar would be paid a sum of Rs. 10,00,000/- each and that the petitioner and Jaishankar would be relieved of all the liabilities of the company. It was pointed out that the total loan from the various Banks was to tune of Rs. 72,15,250/- and from the private parties to the directors at Rs. 60,05,000/-. It was agreed that the said Murugadass would reconstitute the Board of the respondent company by persons of his choice and inform the Bank about the resignation of the petitioner as well as P. Jaishankar from their directorship. On the resignation of the petitioner, two other persons by name A. Mohan and O.R. Suthandiradass were inducted as new directors. The Memorandum of Understanding dated 8.4.2009 was drawn, whereby the said Murugadass agreed to pay Rs. 16 lakhs to the petitioner herein towards refund of outside liabilities raised by the petitioner herein. The said amount should be paid within 90 days of the transfer of the shares, failing which, the petitioner would be at liberty to claim interest at 18% per annum and that it was open to the petitioner to take legal action against the company and the said Murugadass. Clause 13 of the agreement stated that on fulfilling the conditions, the petitioner herein shall transfer his entire shareholding to the said Murugadass or any other person that the said Murugadass may identify.

(3.) The petitioner's contention is that based on the Memorandum of Understanding, a letter was issued to the petitioner herein by the said Murugadass that he had issued cheques towards the unsecured loans raised by the petitioner for the development of the company to the tune of Rs. 16 lakhs. However, due to poor liquidation of the recoveries, he could not honour the commitment on the scheduled date; that he was taking steps to settle the dues at the earliest and hence, he requested the petitioner not to deposit the cheques till further confirmation and assured that the dues would be settled before end of the month. This letter was followed by yet another letter dated 17.8.2009, informing the petitioner that they were taking effective steps to settle the dues at the earliest and they also called upon the petitioner to revalidate the cheque or get a fresh post-dated cheque. Since there was no indication in the letter dated 17.8.2009 as to the date of payment, on 01.09.2009, the petitioner issued a statutory notice to the said Murugadass, calling upon him to pay a sum of Rs. 16 lakhs, failing which, appropriate action would be taken under Section 138 of the Negotiable Instruments Act.