TaxTMI 
TaxTMI 
2016 (5) TMI 824
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....by the order passed by the learned Single Judge was set aside by remitting the matter back to the Company Court to dispose of the company petition on merits and in accordance with law. The Division Bench has also observed that the said e-mail dated 01.04.2008 has been sent by the respondent company acknowledging its debt and such acknowledgement of debt was made before the expiry of the limitation of period. The said order passed by the Division Bench was challenged by the respondent before the Hon'ble Supreme Court in S.L.A (C) No.32408 of 2013, which came to be disposed of as withdrawn. The said order of the Apex Court was made on 24.02.2015. Thereafter, the matter was listed before this court on 12.02.2016. However at the request of both sides, the matter was adjourned to 08.03.2016 finally for hearing the matter for admission. Accordingly, the matter was taken up and heard for admission. 3. The case of the petitioner is as follows: The respondent company was incorporated in 2003 with Registrar of Companies, Tamilnadu under the provisions of the Companies Act, 1956. It is an Information Technology company. The respondent company sought the services of the petitioner as a C....
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....med by him. Winding up petition is filed based on the promissory note allegedly executed in the name of the petitioner. Therefore, the petitioner can approach the civil forum and establish his money claim due under the alleged promissory note. If he succeeds, he may proceed to file execution petition and not to file a petition of this nature. When the respondent company has got an employee strength of more than 800 technical qualified persons, a petition for winding up cannot be admitted for adjudication. The Company Court cannot act like a Civil Court. Though the petitioner was appointed to act as the agent of the respondent, he has not procured a single business to the respondent. The petitioner has not even earned a single pie for the respondent company and has not done any work which warrants payment of service charges. The respondent strongly denied the execution of promissory note dated 31.03.2005 through e-mail dated 01.04.2008. The respondent also denied sending such e-mail dated 01.04.2008 and puts the petitioner for strict proof of the same. Since the dispute between the parties is purely of civil nature, the petitioner cannot maintain the present company petition. 5. Th....
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....100 (2002) DLT 14, NEPC India Ltd. vs. Indian Airlines Limited, ii) AIR 2005 SC 4175, Mediquip Systems Pvt. Ltd. vs Proxima Medical System GMBH; iii) (1994) 79 CompCas835(SC), Pradeshiya Industrial & Investment Corporation of U.P. vs North India Petrochemical Ltd., iv) (2010) 159 Compcas369 (SC), IBA Health (I) Pvt. Ltd. vs Info-Drive Systems Sdn. Bhd. 8. Heard the learned counsels appearing on either side and perused the materials placed before this court. 9. This company petition is filed for winding up of the company on the ground that the Company failed to pay its admitted liability to the petitioner and is unable to pay all its debts arising in the usual and ordinary course of business, consequently becoming as a commercial insolvent. The claim of the Company petitioner is that his service as a consultant for the respondent company was utilised after entering into a Consultant agreement dated 21.05.2004 agreeing to pay a sum of US$ 10,460 per month as consultancy charges and that the respondent company failed to pay such monthly remuneration towards such service rendered by the petitioner and consequently an amount of US$ 140,000 was due and payable without interest t....
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....ent company, on 31.10.2005. Further, on a perusal of the promissory note, dated 31.3.2005, it could be noted that, if the agreed amount was not paid by 31.10.2005, interest would accrue to the amount payable, on a monthly basis, at the rate of 1.5%. As such, the respondent company was at liberty to make the payment of the agreed amount of US $ 1,40,000, before 31.10.2005. Accordingly, the period of limitation, with regard to the amount payable to the appellant, by the respondent company, would start running from 31.10.2005 and not from 28.3.2005, as held by the learned Single Judge. 39. It is not in doubt that an E-mail, dated 1.4.2008, had been sent by the respondent company, acknowledging its debts, as required under Section 18 of the Limitation Act, 1963. As the acknowledgement of debt had been made by the respondent company, before the limitation period of three years from 31.10.2005 was over, a fresh limitation period had started from the date of such acknowledgement i.e. from 1.4.2008. Thus, the company petition, in C.P.No.2 of 2009, which had been filed by the appellant, on 24.11.2008, is within the period of limitation. However, the learned Single Judge had held that the ....
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....spondent company. 13. Another attempt is made by the learned counsel appearing for the respondent company to contend that what was offered through e-mail dated 01.04.2008 was only 100,000 US$ that too in 3 or 4 crunches and not the entire claim of the company petitioner. Here again I would like to point out that when a promissory note was executed in favour of the petitioner, promising to pay 140,000 US$ and when such execution is admitted in the subsequent communication dated 01.04.2008 even though by offering a lesser payment, it cannot be permitted to contend that there is no admitted liability of US $ 140000. On the other hand, such offer of the respondent company to pay lesser amount will not absolve the respondent company from its admitted liability of 140,000 US$. Therefore, there is no difficulty for this court to come to a conclusion that such admitted liability has not been paid even after the issuance of the statutory notice. Hence, this court is left with no other option except to accept the contention of the company petitioner and admit the company petition to proceed further in this matter. 14. The learned counsel appearing for the company petitioner relied on AIR 1....
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....ny would be able to meet its then demands, the value of such assets without which it could not carry on business, should not be taken into account. According to them, the test of inability to pay the debt under Section 433(e) was not whether the company, if it converted all its assets into cash, would be able to discharge its debts, but whether in a commercial sense the existing liabilities could be paid by it while it continued to carry on as a company. In the light of the above observation, the claim that the respondent is a running company is not a relevant material. 16.On the other hand, the learned counsel for the respondent relied on the following decisions: 100 (2002) DLT 14, NEPC India Ltd. vs. Indian Airlines Limited, a decision of the Delhi High Court, AIR 2005 SC 4175, Mediquip Systems Pvt. Ltd. vs Proxima Medical System GMBH and (1994) 79 CompCas835(SC), Pradeshiya Industrial & Investment Corporation of U.P. vs North India Petrochemical Ltd., are cited to contend that if there is a bonafide dispute and the defense is a substantial one, the court will not wind up the company. There is no difficulty in accepting the above proposition. However, when I find that there is....
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....ns were held between the parties, the respondent failed to pay the dues and on the other hand, it appears that only a meagre sum was offered to the company petitioner. 19. No doubt, it is true, not that all the "failures" to pay the debt would fall under the purview of "unable" to pay the debt. But at the same time, if such "failure" is not resulting out of any bonafide contention on the part of the company and on the other hand, inspite of having sufficient opportunity to settle the dues, if the company fails to do so, this court can, going by the facts and circumstances of the case, certainly bring such "failure", under the purview of "unable" to pay the debt or due, while considering the application for winding up. At this juncture, it is to be noted that "admitted liability" is totally different and distinguishable one from an "offered amount" by the borrower after admitting such liability. Therefore such offering of lesser amount, that too by citing financial crisis, cannot be considered as the "disputed liability". 20. Therefore, this court can, without any hesitation come to a conclusion that the respondent company is not only due to the company petitioner and also is unab....