BHARTI TELECOM LTD Vs. ALTOS INDIA LTD

JUDGEMENT

(1.) Altos India Ltd. , a public limited company, duly incorporated under the provisions of Companies Act, 1956, hereinafter referred to as the respondent-company, hardly raised any dispute to its liability to pay the amounts claimed by Bharti Telecom Ltd. hereinafter referred to as the petitioner-company. The respondent-company always pressed for considering revival of rehabilitation schemes put forward by it with the aid of the various financial institutions and banks to which the respondent-company was highly indebted. Thus, this court was primarily not only concerned with the winding up of the respondent-company for its inability to pay its debts despite service of a statutory notice within the preview and scope of sections 433, 434 and 439 of the Companies Act, 1956 ('the Act') but was obliged to consider with definite emphasis whether it was just, fair and equitable to wind up this respondent-company for various reasons and causes, which came to on the record of this file during the pendency of the winding up petition.

(2.) The petitioner-company had brought the present petition on the allegations that the respondent-company has failed to pay its debts of Rs. 2,18,74,578 with interest despite statutory notice having been served upon the company. Reference was also made to the proceedings instituted under section 138 of the Negotiable Instruments Act. This petition of the petitioner-company was admitted vide order dated 11th June, 1998 passed in CP No. 196 of 1997. Reproduction of this order would help in avoiding repetition of facts and would give a composite picture of the affairs of the respondent-company. The order dated 11th June, 1998 is reproduced hereunder : '. . . . Bharti Telecom Ltd. has filed this petition under sections 433, 434 and 439 of the Companies Act (hereinafter referred to as 'the Act') praying that Altos India Ltd. (hereinafter referred to as the respondent-company) be ordered to be wound up. In this petition it is averred that the respondent-company was incorporated on 25th September, 1987 under the name of Altos India (P.) Ltd. Its name was subsequently changed to Altos India Ltd. and a fresh certificate of incorporation was issued to this company on 16th June, 1983. Respondent-company is stated to have approached the petitioner-company to advance a sum of Rs. 1 crore as inter-corporate deposit for a period of 90 days and agreed to pay interest at the rate of 27 per cent per annum for which different documents including Demand promissory note, stamped receipt and security by way of deposit share of the company were executed by and on behalf of the respondent-company. The terms and conditions as stated in the letter dated 12th August, 1996 were accepted between the parties and thereupon petitioner-company released a sum of Rs. 1 crore vide cheque No. 441977, which was duly encashed. The sum of Rs. 1 crore was released to the respondent-company by the aforesaid cheque by Bharti Tele Ventures Ltd. , a subsidiary company of the petitioner-company. Respondent-company is stated to have further approached the petitioner-company with a request that the said company has decided to issue 20 per cent redeemable non-convertible preferential shares carrying a dividend of 20 per cent per annum and maturity date being 31st March, 1997 requested for conversion of inter-corporate deposit of Rs. 1 crore advanced on 14th August, 1996 as subscription amount, towards the issue of 10 lakh 20 per cent redeemable non-convertible preferential shares. Based on this request the petitioner-company further issued a cheque of Rs. 1 crore bearing No. 441979 dated 20th August, 1996 as subscription amount on the aforesaid basis. In this manner the respondent-company had accepted the financial benefits to the extent of Rs. 2 crore from the petitioner-company. In furtherance to the agreement between the parties the respondent-company had issued post dated cheques for repayment of the amounts and it also issued cheque bearing No. 500992 dated 20th August, 1996 for a sum of Rs. 61,177 towards interest for 7 days on inter-corporate deposit. The total liability was accepted by the respondent-company vide its letter dated 20th August, 1996, the copy of which has been placed on record as Annexure P-9. Further vide letter dated 31st March, 1997 the respondent-company wrote a letter to the petitioner-company calling upon them not to present the two cheques given earlier i. e. , one for Rs. 2 crore and other for Rs. 18,80,578 and requested that they be not presented till 30th April, 1997 as the respondent-company was in serious financial problem. Copy of this letter has been placed on record as Annexure P-12. These very cheques were dishonoured on presentation and the petitioner-company filed proceedings under section 138 of the Negotiable Instrument Act, which are stated to be pending before the court of competent jurisdiction. As the cheques were dishonoured and no payment was forthcoming from the respondent-company, the petitioner-company issued a notice under section 433 of the Companies Act on 31st May, 1997 claiming a sum of Rs. 2,18,17,578, copy whereof is placed on record as Annexure P-15. This notice was received by the respondent-company but no reply was sent compelling the petitioner-company to file the Company Petition No. 103 of 1997. CP No. 103 of 1997 was disposed of by this court vide order dated 24th October, 1997, which reads as : "ca No. 427 of 1997 in CP No. 103 of 1997. . . . This is an application filed by the petitioner seeking permission to withdraw the company petition with liberty to file one on the same cause of action. Learned counsel for the respondent has no objection if the petition is allowed to withdraw. In view of the stand taken by the counsel for the respondent as well as the fact that the errors stated to have occurred in filing of the company petition are mere technical in nature CM is allowed. "in view of the order passed in CA No. 427 of 1997 this petition is dismissed as withdrawn". '

(3.) Consequently, the present winding up petition was filed. Notice of this petition was issued to the respondent vide order dated 21st November, 1997. The respondents were served and they put in appearance on 29th January, 1998. The respondents were granted time to file reply within one week which was not filed. The matter was adjourned to 13th February, 1998. Vide order dated 20th February, 1998 it was mentioned that there is a likelihood of the parties settling the matter amicably and as such the matter was adjourned to 6th March, 1998. Thus, there was no question of filing any reply nor request for filing of a reply was ever made after 29th January, 1998 as liability was clearly admitted thereafter. Learned counsel appearing for the respondent-company submitted that the matter practically has been settled and it is only the question of instalments and the period in which such instalments has to be made that remains to be settled. As such the matter was adjourned to 20th March, 1998. Adjournment was again sought and the matter was fixed on 3rd April, 1998. Parties intended to discuss the matter and consider the possibility of payment to the petitioner-company and as such the matter was adjourned to 24th April, 1998 vide order dated 3rd April, 1998.