2010 (2) TMI 586

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....g the shareholders of the company. It is stated that the petitioner was one of the directors of the respondent-company along with one Murugadass and Jaishankar. It is stated that disputes arose among the shareholders of the company as regards the conduct of the affairs of the company, which resulted in a memorandum of understanding. Admittedly, certain borrowings were thereby the company from the creditors arranged by the petitioner too. In terms of the minutes of the meeting dated 24-3-2009, the memorandum of understanding was reduced to writing dated 8-4-2009, between the company and one of the directors Murugadass on the one side and the petitioner on the other side. The petitioner and Jaishankar agreed to transfer their entire sharehold....

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....ire shareholding to the said Murugadass or any other person that the said Murugadass may identify. 3. The petitioner's contention is that based on the memorandum of understanding, a letter was issued to the petitioner herein by the said Murugadass that he had issued cheques towards the unsecured loans raised by the petitioner for the development of the company to the tune of Rs. 16 lakhs. However, due to poor liquidation of the recoveries, he could not honour the commitment on the scheduled date; that he was taking steps to settle the dues at the earliest and, hence, he requested the petitioner not to deposit the cheques till further confirmation and assured that the dues would be settled before the end of the month. This letter was foll....

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....any. Since the same was available with the petitioner, he called upon the petitioner to return the same to enable them to recover a sum more than Rs. 77 lakhs. The amount payable to the petitioner is a significantly lower amount; hence, having regard to the solvency of the company and that the bank was desisting from making payment only on account of the petitioner not complying with the terms of the agreement, the claim was refuted. 6. Learned counsel for the petitioner submitted that having regard to the fact that the liability is an admitted one, winding up of the respondent-company has to be ordered. 7. On notice, the respondent has filed a counter-affidavit before this Court wherein, it is stated that in spite of an intimation gi....

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....empt before the city civil court, the attempt now is only a sheer case of harassment and, hence, prayed for the dismissal of the petition. 8. A perusal of the documents filed before this Court, particularly the memorandum of understanding dated 8-4-2009, clearly shows the obligation of the petitioner as well as that of the respondent-company and the director Murugadass. Learned counsel for the petitioner pointed out that based on the memorandum of understanding, the petitioner came out from the directorship of the respondent-company; as such, when the respondent undertook to make the payment of a sum of Rs. 16 lakhs to the petitioner as per clause 3 of the agreement, the question of the respondent denying the payment does not arise. He f....

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....rounds on which a winding up of a company could be ordered. The law declared by the Apex Court in the decision in Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas.125 which has been consistently followed till this date, clearly laid down the guidelines in considering the merits of a winding up petition. As far as the present case is concerned, the claim of the petitioner is based on the memorandum of understanding. The respondent has raised a serious dispute as regards the performance of the obligations therein. In the background of the dispute raised, which does not lack bona fides, it is not possible for this Court to accept the plea of learned counsel appearing for the petitioner that the refusal to p....