TaxTMI 
TaxTMI 
2014 (4) TMI 655
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....s to be for Rs.1,32,020/- and the rest were to be of Rs.66,010/-. The aggregate amount payable was Rs.31,68,480/- over three years. Tata Motors claims that Sundeep Polymers was in breach of its contractual obligations. It did not pay overdue instalments despite reminders. Tata Motors' advocates sent a statutory notice dated 23rd February 2001 under sections 433 and 434 of the Companies Act, 1956 to Sundeep Polymers, demanding that the vehicle be returned, or that Rs.15,88,405/- under the Hire Purchase Agreement be paid. Sundeep Polymers replied on 27th February 2001. It complained that the car was defective. It said that it had filed a complaint before the National Consumer Disputes Redressal Forum against Tata Motors Ltd, Concorde Finance Ltd and Mercedes Benz India Ltd. It denied, for these reasons, that it was liable to pay any amount to Tata Motors Ltd. 3. Mr. Dileep Nevatia, a director of Sundeep Polymers, appears in person. He has, on behalf of the Sundeep Polymers, also filed Company Application No. 119 of 2014 for dismissal of the petition. He has raised four principal defences to the petition: (a) First, that Tata Motors' advocates' statutory notice was not sent to t....
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....' Report and Balance Sheet as on 31st March 2000. The Company/LLP Master Data record, too, shows only this address. To this affidavit, at Exhibit "D", is another print out of the Company/LLP Master Data, and this also shows the 52, Mamta "A" address. The CIN no of the company (both when it was known as Sundeep Plastics Pvt Ltd and later when its name was changed to Sundeep Polymers Pvt Ltd) is the same, U99999MH1981PTC024648. 7. Mr. Nevatia cannot explain this. He insists that "someone" has "tampered with" the official records. This is an argument of desperation. It does not explain the address shown in his own response, on behalf of Sundeep Polymers, to Tata Motors' advocates' statutory notice. That reply, dated 27th March 2001, shows only one address: 52, Mamta "A", New Prabhadevi Road, Mumbai 400 025. This is the very address to which the statutory notice was sent. 8. There is, therefore, no substance at all to the first defence. 9. The second ground is also soon despatched. Mr. Nevatia insists that Tata Motors is a money-lender within the meaning of the Bombay Money-Lenders Act, 1947. Therefore, this petition is not maintainable. Mr. Nevatia insists that at the time wh....
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..... Since the transaction between the petitioner and the 1st respondent is of money lending, the 1st respondents are moneylenders. The 1st respondents have not complied with the provisions of the Bombay Money Lenders Act, 1946 and hence the agreement is illegal and/or void. ... 6. The agreement of hire purchase in the present case, cannot in any view of the matter, be considered as a transaction of money-lending. The vehicle was purchased directly by the 1st respondents. Under the terms of hirepurchase agreement the 1st respondents remained the owners of the said vehicle. Under Clause 5 of the said agreement the petitioner is liable to pay to the owners monthly hire charges as set out in the said clause. It is provided that on the petitioner paying to the owner all sums of money and all installments of hire as set out in the said agreement, the hiring shall come to an end and the vehicle shall at the option of the hirer, become his absolute property; but until such payments are made, the vehicle shall remain the property of the owner. The hirer is also given the option of purchasing the vehicle at any time during the currency of the agreement by paying in one lump sum the balance ....
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....fourth, contention, that Tata Motors has an arbitral award in its favour and therefore cannot maintain this petition needs only to be stated to be rejected. The law in this regard is far too settled to warrant repetition. A petitioning-creditor with a decree need not put it into execution before bringing a winding up petition. He can proceed either under Section 434(1)(b) or, having served a notice, move against the debtor-company under Section 434(1)(a). All India General Transport Corporation Ltd v Raj Kumar Mittal, [1978] 48 Com Cas 604 (Cal); Karpara Project Engineering v Ballarpur Industries Ltd., 2008 (Supp) Bom. C.R. 39; Madhuban Pvt. Ltd. v Narain Das, [1971] 41 Comp. Cas 685 (Del); Seethai Mills Ltd. v N. Perumalsamy & Anr, [1980] 50 Comp. Cas 422 (Madras); Suvarn Rajaram Bandekar v Rajaram Bandekar (Siringaon) Mines Pvt. Ltd., [1997] 88 Comp. Cas 673 (Bom) Section 36 of the Arbitration & Conciliation Act, 1996 makes it clear that an arbitral award can be enforced as a decree under the Code of Civil Procedure, 1908. 17. But Mr. Nevatia has a final string to his bow. The Mercedes Benz, he says, was defective. It lay in the garage and did not function as it ought. Therefo....
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....olely to the manufacturer/supplier or its selling agent for the performance of all guarantees and warranties with respect to the vehicle. 18. This is an all-encompassing disclaimer by Tata Motors. It is one that Mr. Nevatia signed for Sundeep Polymers. Given his legal acuity, it is impossible that Mr. Nevatia did not comprehend this; in fairness, he does not even so suggest. The defects in the vehicle, if indeed there were any, are matters wholly alien to the present proceeding and well beyond its scope. That Mr. Nevatia seems not to have obtained any orders in the pursuit of his consumer complaint against Tata Motors is another matter altogether. 19. None of the contentions taken by Mr. Nevatia for Sundeep Polymers can be said to be either bona fide or of substance. There is, quite simply, no defence at all to this petition. This petition has been pending admission for an extraordinary period of some 13 years. How this has come to pass is unclear, but I can only attribute this to Mr. Nevatia's forensic skills. Unfortunately, considerable though they are, they cannot rescue a matter so utterly beyond redemption. It is only because Mr. Nevatia has assumed the burden of defendi....