MAHESH ENTERPRISES Vs. N R

JUDGEMENT

(1.) THE petitioners claim from the company an amount of Rs. 17,73,167. 39 Ps. as set out in Exhibit A to the petition. It is the case of the petitioners that the said amount is in respect of the goods sold and supplied by the petitioners to the company. As the company failed to pay the amount a statutory notice was served on the company dated 30th August, 1991 at its registered address being Plot No. A-264, Road No. 26, Wagle Estate, Thane-400 604. The company has received the said letter and replied to the same by their letter dated 2nd October, 1991. The company did not disown its liability to pay. The company, however, pointed out that Mr. M. K. Bagadia who was the partner of M/s. Mahesh Enterprises had joined as a Director from 1st September, 1990 and it had been agreed at the time of joining that he would supply lamination material and contribute by giving loan whenever required. Similar arrangements were made by the other Directors. The company set out that money could be paid in instalments at the maximum amount of Rs. 1 lakh starting from November, 1991. As the company failed and neglected to pay the amount, petitioners were forced to file the Company Petition. It is the case of the petitioners that inspite of statutory notice the company after admitting the amount has failed and neglected to pay the petitioners or secure them and in that light of the matter the petitioners have made out a case that the company was deemed to be unable to pay its just debt and consequently should be wound up. In paragraph 11 of the petition, the petitioners have averred that the company is unable to pay its debts within the meaning of section 434 of the Companies Act. The company has also failed to meet its liability within 21 days of receipt of the said notice.

(2.) THE company in reply filed an affidavit of Shri Mohit Anil More. In paragraph 13 it is averred that no notice was served at the registered address of the company. By affidavit dated 18th February, 1999, the petitioner have filed a xerox copy of the certified copy issued by the Registrar of Companies of Form No. 18. The said form shows that the registered address of the company with effect from 1st July, 1989 was 5, Wavel House, Dhobi Talao, 1st Lane, Bombay- 400 002 and from 25th June, 1992 was at 8. Raghurai Bhavan, Gokhale Road (South), Dadar (West), Mumbai- 400 028. In reply it was contended that the petitioners were not a registered partnership. It has also been pointed out that till the date of filing of the reply the company had paid to the petitioners a sum of Rs. 10 lakhs under the present proceedings. It has been contended that there was a settlement between the parties and as the petitioners had backed out of the settlement the petitioners were liable to repay the said amount. In paragraph 11 there is a conditional offer made therein. On 26th February, 1998, a rejoinder has been filed by the petitioners. There are certain averments made therein about professional conduct of lawyers engaged by the petitioners. That to my mind is irrelevant in sofar as the present petition is concerned. The remedy for the petitioners if and at all will be elsewhere. The petitioners have denied what has been set out in the affidavit in reply specially the allegation that false bills had been created. The petitioners have also filed additional affidavits dated 6th February, 1991 and 25th February, 1999. The company has filed additional affidavits in reply dated 18th February, 1999 and 25th February, 1999. By these additional affidavits the petitioners seek to contend that the company has taken huge Bank loan and other loans aggregating to Rs. 1,62,43. 896/ -. Attention is also invited to the book losses suffered by the company and other details as set out thereunder. It is therefore contended that if not section 434 (1) (a) the company should be wound up in terms of section 434 (1) (c) of the Companies Act.

(3.) BOTH sides have relied on various Judgments which will be dealt with while disposing of the contentions of the parties.