SHAM LAL GUPTA Vs. HAMCO INDUSTRIES PVT LTD

JUDGEMENT

(1.) This petition under Ss. 433(e), 434 and 439 of the Companies Act, 1956 (for short, 'the Act) has been filed for the winding up of M/s. Hamco Industries Private Limited, Muksudan, Jalandhar (hereinafter called 'the Company') on the ground that it is unable to pay its debts.

(2.) The Company wanted to float some shares with a view to increase its capital. The petitioner, who along with his family members were share holders of the Company applied for allotment of 110 shares in his name and sent the share application form duly filed to the Company along with a sum of Rs. 1.10 lacs as per cheque No. 219479 dated 10/05/1982. The cheque was encashed and the receipt of the amount is admitted by the Company and the same is reflected in its balance sheet. Annexures P2 and P3 are copies of two balance sheets of the Company for the period ending 31/03/1993 and 31/03/1984 in which an amount of Rs. 1.10 lacs is shown to be with the Company representing share application money pending allotment of shares. It is common case of the parties that the Company did not float any fresh shares and, therefore, none was allotted to the petitioner. According to the petitioner, the share money paid by him continued to remain in deposit with the Company for a couple of years. It was in the year 1990 that he demanded the return of his money and he is said to have written some letters in this regard. Not having received any positive response he sent a registered letter dated 6/12/1990 (Annexure P4 with the petition) demanding the return of the amount along with interest. It was also stated that in case the amount was not paid, legal proceedings would be initiated for recovery of the same. The Company denied the receipt of this letter but admitted the receipt of a registered envelope which, according to it, on opening contained nothing. This fact was communicated to the petitioner by a registered letter dated 13-12-1990 (Annexure P5 with the petition). It is incredible that a creditor who is seeking the return of his money would send an empty envelope by registered post without a letter containing his demand for the return of money. Any way, the petitioner wrote another registered letter dated 20/12/1990 calling upon the Company to return the amount with interest. The Company admits the receipt of this letter and the stand taken in the written statement is that a reply was sent as per letter of the Company dated 2-1-1991. Receipt of the reply has been denied by the petitioner in the replication and the Company has not filed a copy of the letter dated 2-1-l99l. The petitioner then sent registered notice through counsel in January, 1991 and again in September, 1992. These notices were sent under S. 434 of the Act claiming the return of the amount of Rs. 1.10 lacs which was lying in deposit with the Company. When the petitioner did not get any reply from the Company the present petition was filed alleging that the Company was unable to pay its admitted debt. It is also pleaded that the Company on receipt of registered notices had for 3 weeks thereafter neglected to pay the amount nor did it secure or compound the debt to the reasonable satisfaction of the petitioner and, therefore, it should be deemed to be unable to pay its debts within the meaning of S. 433(e) and 434 of the Act.

(3.) In the written statement filed on behalf of the Company some preliminary objections have been raised. It is admitted that the petitioner has deposited the amount of Rs. 1.10 lacs as alleged by him. The case of the Company is that this amount was paid back to him in the year 1988. It is also pleaded that the amount as claimed by the petitioner has become time barred as it was deposited in the year 1982 and the same could be claimed on or before 10/05/1985. It is further alleged that there were a large number of disputes between the petitioner on the one hand and his brother Shri Om Parkash Gupta, Managing Director of the Company and other members of the Company on the other. According to the respondent, the petitioner and his wife along with their children had filed a suit against the Company in the Court of Senior Sub Judge, Jalandhar and the same was compromised on 15/09/1988 and the Company paid a consolidated sum of Rs. 1.50 lacs to settle all claims whatsoever of the petitioner and his wife with the Company. A copy of the statement made by the petitioner in that suit has been attached as Annexure R l and a copy of the order passed by the Court in that suit has been produced as Annexure R 2 with the written statement. The case of the Company is that the sum of Rs. 1.50 lacs which was paid to the petitioner and his wife on 15/09/1988 while settling the disputes in the suit included the amount of Rs. 1.10 lacs deposited by the petitioner as share allotment money. It is denied that the Company is unable to pay its debts. On the other hand, it is stated that the Company which is being managed by the brother of the petitioner is doing very good business and has large profits and that the present petition has been filed by the petitioner out of sheer jealousy on this account. The Company also claims to have sent a reply to both the statutory notices received from the petitioner as per its letters dated 11-2-1991 and 1-10-1992 copies of which have been attached as Annexures R4 and R5.