Partly allowed

m/s parshwa traders v. eagle agro farms (p) Ltd.

Bombay HC5 Jun 2008CP/484/2007

Case brief

AI extract

What is this about?

In a petition for winding up under Sections 433 and 434 of the Companies Act 1956, the High Court admitted the petition. On the respondent's conditional application to deposit the principal sum, the Court granted liberty to withdraw the winding up petition and file a suit for the balance claim if the amount is deposited within 12 weeks.

What did the court decide?

Liberty granted to petitioner to file suit for balance claim if respondent deposits Rs. 8,10,000 within 12 weeks; otherwise, company petition to stand admitted.

m/s parshwa traders Vs eagle agro farms (p) Ltd. — Company and Corporate | Bombay HC (2008)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION

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Company Petition No. 484 of 2007

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 M/s. Parshwa Traders

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: Petitioner

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v/s

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Eagle Agro Farms (P) Ltd. : Company respondents

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 Mr. A.M. Kulkarni advocate for petitioner
Mr. J. Mitra i/b Halai & co.for respondents

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CORAM: S.C.DHARMADHIKARI J.
5th June,2008

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 P.C.

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1. This is the company petition for winding up.

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 2.The jurisdiction of this court u/s 433 and

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 434 of the Companies Act 1956 is invoked to wind

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 up Eagle Agro Farm (P) ltd.referred to as

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 company in short.

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 3.The petitioner is the trader and has claimed
 that he was carrying on business in the state

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 Karnataka. Certain goods were ordered by the

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 company. The orders were confirmed and
 accordingly goods were delivered by the
 petitioner to the company. In respect of these

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supplies invoices were raised and ultimately a

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 statement of account were forwarded. The

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 extract of the confirmation of accounts dt.

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1.4.2004 has been annexed as annexure B to the
 petition. The closing balance is shown therein.
 At the foot of this account the company confirms
 the balance as per its record to the extent of
 Rs. 8,06,651/-. Since after confirmation also
 the amount was not paid the petitioner addressed
 letters through its advocate. There are
reminders and finally there is a statutory
 notice dt. 2.1.2007. Since there is no
 compliance with the statutory notice this
 petition is filed.

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Mr. Kulkarni submits that in the light of
 the balance confirmation by the company the
 presumption in law arises and therefore a case
 is made out for admission of this company
 petition. He submits that the reply is filed
 only to delay the proceedings. There is no
 defense much less a bonafide defense to the
 claim. The claim is not disputed at all.

¶24

 5.Mr. Mitra appearing on behalf of the
 respondent raised two contentions. his first
 submission is that the company petition is not
 maintainable because there is no statutory

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notice served on the respondent prior to the
 winding up petition is filed. He submits that
 requirement in that behalf of mandatory. If
 there is service at the registered office of the
 company, then, the petition is not maintainable.
 He relies upon the decision of this court
 reported in Company Cases Vol 76 page 244.

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 6.The 2nd contention is that the company
 petition is nothing but a suit for recovery of
 the sums. He drawn my attention to the
 statement of claim at Ex. A and submits that
 the petitioner is claiming compensation and
 damages so also penal interest. All this cannot
 be granted in the limited jurisdiction of this
 court.

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 7.As far as first contention is concerned from
 perusal of affidavit in reply filed I found that
 no defense is taken that a statutory notice has
 not been served in terms of section 433 and 434
 of Act. That apart, the company i.e. to be
 wound up is Eagle Agro Farms (P) ltd.That

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 company has its registered office at Eagle
 Estate, Talegaon, Tal. Maval, District Pune.

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The notices by RPAD /UPC are delivered at this
 very address. The notice styled as statutory
 notice dt. 2.1.2007 has also been delivered at
 the registered address. When the notice was
 sent/delivered the endorsement on the packet

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is that "the company is closed".Watchman has
 therefore not accepted the packet. This is not
 a case where the statutory notice is not
 delivered at the registered office at all.
 Thus, apart from the plea not being raised in
 the affidavit in reply but orally for the first
 time, conditionally, I found no substance in

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the contentions of Shri Mitra to this effect.

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 The judgment of this court is cited before me is
 distinguishable on facts. There, the arguments
 was that the petitioner sent notice by
 registered post to the registered office but it
 was returned not delivered -not served.
 Thereafter, another notice was sent to the
 company but this time it was not at the
 registered office. It is in these peculiar
 facts that the court concluded that there is no
 notice under the statute delivered at the
 registered office. Such is not the case before
 me. The notice is delivered at the registered

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office. It is not the case of the respondent
 company that it does not carry on business at
 Eagle Estate or that the same is not its
 registered office. The dispute is with regard
 to delivery. However, from the endorsement on
 the original packet I am satisfied that the
 notice is delivered at the registered office.

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As far as the merits are concerned in the
 entire affidavit there is no dispute raised with
 regard to the liability. At least, in so far as
 principal amount is concerned the affidavit in
 reply is silent. There are denial with regard

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 to the claim of compensation and interest but in
 the face of the balance confirmation and that
 the confirmation is by the company itself
 through its authorised signatory, there is no
 dispute or denial. Therefore, at least to the
 extent of the principal sum there is an
 admission of the liability. That amount having
 not been paid the petition would have been filed
 and is thus maintainable.

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 9.After all this was brought to the notice of
 Shri Mitra. He makes statement on instructions

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that inspite of company petition being admitted
 by this court an opportunity to be given to the
 respondent to show its bonafides and it will
 deposit the principle sum of Rs. 8,09,992/- in
 this court within 12 weeks from today.

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 10.After hearing both the sides in the light of
 the statement made by Mr. Mitra on
 instructions, in my view the conditional order
 can be passed in the following terms.

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ORDER

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.(a)Upon the respondent deposit in this court
 a sum of Rs. 8,10,000/- within 12 weeks from
 today liberty is granted to the petitioner to
 file a suit for the balance claim and the amount
 should be transferred to the credit of the said
 suit if deposited.

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 .Mr. Kulkarni appearing for the petitioner
 states that the petitioner would take steps to
 file a suit immediately after compliance is made

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 by the company with the above statement.

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.(b) Needless to state that if the amount is

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 not deposited as stated above this company
 petition to stand admitted and thereafter
advertisement in accordance with law. The
 petitioner’s advocate is at liberty then to pay
 the advertisement charges.

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(c) All contentions in so far as merits of
 the case are concerned in the suit are kept open
 and it would be permissible for both sides to
 raise such pleas as available in law with regard
 to the claim of the petitioner. If the amount
 is deposited would amount transfer, petitioner
 is at liberty to apply for withdrawal of the
 principle sum deposited with approved interest
 and such application should be considered by the
 trial court in accordance with the law.

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(S.C. DHARMADHIKARI,J)

m/s parshwa traders v. eagle agro farms (p) Ltd.

Case brief

What is this about?

What did the court decide?

m/s parshwa traders v. eagle agro farms (p) Ltd.

Case brief

What is this about?

What did the court decide?

What the court decided

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