ARVIND AGGARWAL Vs. ADHUNIK PACKAGERS (P) LTD

JUDGEMENT

(1.) THE petitioners have approached this Court under Sections 433(e), (f), 434 and 439 of the Companies Act, 1956 (hereinafter referred to as 'the Act') on the allegations that the respondent which is a private limited company incorporated under the Act is unable to discharge its debts due and payable to the petitioners. 1 Whether reports of Local Papers may be allowed to see the judgment? Yes.

(2.) IT has been averred that the respondent took loans from the petitioners from time to time for the purposes of utilizing the money in its business. These loans were advanced to the respondents by way of cheques and bank drafts and the amount due and outstanding to the petitioners has been acknowledged as debts outstanding in the balance sheets for the year ended 31.3.2003. The petitioners aver that the acknowledgement in the balance sheet which also stands duly filed before the Registrar of Companies is that a sum of Rs.10,98,228/- is due to petitioner No. 1 and Rs.10,26,997/- to petitioner No. 2. Balance sheet showing the amount due has been filed as Annexure P- 2 with the petition. In the subsequent balance sheets filed by the respondents before the Registrar of Companies for the financial year ended 31.3.2004 and 31.3.2005, the petitioners have been accepted as unsecured creditors. The allegations against the respondents are that the company had issued cheques for payment of these unsecured loans as reflected and accepted in the balance sheet, but they have been returned to them with the remarks "account closed". Criminal complaints under Section 138 of the Negotiable Instruments Act, 1881 have been filed against the respondents which are pending in the Court of the Chief Judicial Magistrate at Patiala.

(3.) IN reply, the respondents have resisted the application for winding up, pleading, interalia that the father and brother of petitioner No. 1 and father-in-law and brother-in-law of petitioner No. 2 are directors of one company incorporated under the name and style of Lotus Food Stuffs Pvt. Ltd. having its registered office at S-3, Second Floor, LSC, Plot No. 7, Pocket H, Sarita Vihar, New Delhi-44. The respondents submit that an account of M/S Adhunik Packagers Private Limited (Respondent Company) was opened in Canara Bank, Sarita Vihar Branch, New Delhi. It is stated that the bank is located on the ground floor in the same building in which the office of Lotus Food Stuffs Pvt. Ltd. is operating. This account, according to the respondent, was opened with Mr. Pankaj Aggarwal, brother of petitioner No. 1 and brother-in-law of petitioner No. 2 being identifiers/introducer. The reason for opening this account at New Delhi was that business receipts of the respondent was received by cheques payable at New Delhi. In order to facilitate the collection of the payments, it was thought fit and proper to open the account at Delhi over which the petitioners through their relatives were having active control. The reply states the gist of the defence in the following words "as the work and factory of Adhunik Packagers Private Limited were at Parwanoo and no Director or any other employee of Adhunik Packagers Pvt. Ltd. was stationed at New Delhi, the pay in slips, deposit vouchers were being filled up by the employees of M/S Lotus Food Stuffs Pvt. Ltd. and also another company M/S Lotus Marketing Corporation of Mr. Pankaj Aggarwal and Mr. K.L.Aggarwal. Even blank cheques which were signed by the Director of Adhunik Packagers Pvt. Ltd. were kept by Mr. Pankaj Aggarwal so as to enable him to make the payment to different parties from the account of M/S Adhunik Packagers Pvt. Ltd. on instruction of M/S Adhunik Packagers Pvt. Ltd. It is submitted that as blank cheques which were signed by Mr. Yogesh Kumar, Director of M/S Adhunik Packagers Pvt. Ltd. were with Mr. Pankaj Aggarwal, he utilized the blank cheques and transferred the amount from the account of M/S Adhunik Packagers Pvt. Ltd. at Canara Bank, Sarita Vihar, New Delhi in the accounts of M/S Lotus Food Stuffs Pvt. Ltd. Even Mr. Pankaj Aggarwal handed over two blank cheques to the petitioners who presented them to the Canara Bank at Sarita Vihar after the account stood closed resulting in proceedings under Section 138 of Negotiable Instruments Act, 1881. It is submitted that when M/S Adhunik Packagers Pvt. Ltd. came to know that Mr. Pankaj Aggarwal has transferred the amount from M/S Adhunik Packagers Pvt. Ltd. bank account at Canara Bank in Sarita Vihar to M/S Lotus Food Stuffs Pvt. Ltd. without their knowledge and in breach of trust the replying respondent objected to the same and asked Mr. Pankaj Aggarwal to remit back the amount and in failure they will proceed against him. Mr. Pankaj Aggarwal and the petitioners who are related to Mr. Pankaj Aggarwal told M/S Adhunik Packagers Pvt. Ltd. that the amount which Mr. Pankaj Aggarwal had credited in account of Lotus Foods Stuffs Pvt. Ltd. (Lotus Food) from M/S Adhunik Packagers Pvt. Ltd. through cheques which were in his possession will be adjusted with the amount which is due to the petitioners. The petitioners also acknowledged the same. Thus as of date the reply respondent has to recover a sum of Rs.22,90,000/- from M/S Lotus Food Stuffs Pvt. Ltd." The filing of the criminal complaints is not disputed. This, in a nutshell, is the defence which has been taken by the respondents." I have heard the learned counsel for the parties and gone through the record.