Dismissed

M/S Om Som En Fab Pvt. Ltd. v. M/S Maharana Inn Resorts Pvt. Ltd. Cin -U55101MH1982PTC028704

Bombay HC14 Mar 2016CP/555/2014

Case brief

AI extract

What is this about?

The Bombay High Court dismissed two company petitions seeking winding up against Maharana Inn Resorts Pvt. Ltd. The court held that the absence of a document of guarantee and lack of evidence establishing the company's liability as a guarantor meant the petition was not bona fide. The filing of a suit against the debtor separately indicated the petition was a pressure tactic.

What did the court decide?

Company petition dismissed; No costs.

M/S Om Som En Fab Pvt. Ltd. Vs M/S Maharana… — Contract and Commercial Disputes | Bombay HC (2016)

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42 CP NOS.555_556_2014.DOC

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JSN

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

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COMPANY PETITION NO.555 OF 2014

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M/s. Om Som En Fab Private Ltd....Petitioner

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Versus

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M/s. Maharana Inn Resorts Pvt. Ltd....Respondent

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ALONG WITH

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COMPANY PETITION NO.556 OF 2014

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M/s. Ravi Steel Industries… Petitioner

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Versus

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Maharana Inn Resorts Pvt. Ltd.… Respondent

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Mr. Mayur Khandeparkar, i/b. Mr. Girish Kedia, for the Petitioner.
Mr. M.S. Bhandari, i/b. Pranjali Bhandari, for the Respondent.

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CORAM:G.S. PATEL, J.
DATED:14th March 2016

P.C.

1. Heard.

1 of 3

42 CP NOS.555_556_2014.DOC

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2.The Petitioner, registered partnership firm, seeks an order of
winding up against Respondent, Maharana INN Resorts Pvt. Ltd.
(“the Company”.)

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3.The basis of this Petition is that the Petitioner delivered
certain construction material to one M/s. Sankalp Developers &
Project Consultant. The Petitioner’s case is that it was assured that
should Sankalp default in payment of its debt to the Petitioner, the
Company would discharge Sankalp’s debt and liability. In other
words, according to the Petitioner, the Company is a guarantor for
debts of M/s. Sankalp Developers.

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4.Mr. Khandeparkar for the Petitioner agrees that there is no
document of guarantee. However, he says that the endorsement on
page 72 shows an acknowledgement of liability. This is an
interesting document. It is a ledger statement. At the top it bears
the name of the Petitioner. There is a handwritten endorsement at
the foot with the date of 25th July 2013. That handwritten
endorsement reads “for Sankalp”. Mr. Khandeparkar insists that
this is endorsement by the Company. The endorsement does not
say so. There is no rubber stamp. Indeed there is nothing to indicate
that the Company made this endorsement. That, surely, a
sufficiently triable issue to merit the dismissal of this Petition.

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5.Mr. Khandeparkar’s next submission is that the Company
issued two cheques of Rs.25 lacs and these could only have been in
discharge of its obligation as guarantor. The first of these was
cleared; the second is past its validity date. I do not see why this
should be so. No covering letter is shown to me by which it can be

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2 of 3

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42 CP NOS.555_556_2014.DOC

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said that the Company accepted its role or liability as guarantor.
There are several perfectly legal situation and circumstances other
than a guarantee in which one party might pay off a part of the debt
of another without becoming the liable for the whole of that debt.

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6.The Affidavit in Reply squarely takes the point that there is
no document of guarantee and that there is no privity of contract of
whatsoever between the Petitioner and Respondent. This is
certainly a triable issue. It is not a spurious or specious defence
entirely lacking in bona fides.

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7.Indeed Mr. Bhandari for the Company is correct in pointing
out that the fact that the Petitioner filed a Summary Suit No.1093
of 2015 in the City Civil Court, Mumbai against M/s. Sankalp
Developers just one day before this Company Petition, and did not
join the present Respondent as Defendant to that suit, prima facie
indicates that this case against the Respondent is entirely an
afterthought and a pressure tactic.

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8.Mr. Khandeparkar says that there is no reply to the statutory
notice and that the Company must, therefore, be deemed to be
unable to pay its debts. In a situation like this, where I am not
convinced that there is any debt due from the Company at all, I do
not think the statute intended that a deeming fiction should take the
place of evidence.

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9. The Company Petition is dismissed. No costs.

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M/S Om Som En Fab Pvt. Ltd. v. M/S Maharana Inn Resorts Pvt. Ltd. Cin -U55101MH1982PTC028704

Case brief

What is this about?

What did the court decide?

M/S Om Som En Fab Pvt. Ltd. v. M/S Maharana Inn Resorts Pvt. Ltd. Cin -U55101MH1982PTC028704

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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