TaxTMI 
TaxTMI 
2017 (3) TMI 1627
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.... cost etc. 2. The case was first listed on 22.02.2017, whereby Mrs. B.V.S. Lakshmi was present, and Mr. A.V. Raghu Ram accepted notice on behalf of Respondent and at the request of both the parties, the case was posted to 28.02.2017. On 28.02.2017, Mr. K. Arun Kumar appeared on behalf of Petitioner but none appeared for the Respondents. Subsequently, on 01.03.2017, the learned counsel for the Petitioner submitted that due amount was not paid to the Petitioner till date, while the Learned Counsel for the Respondent denied the claim itself. The Bench directed the Learned Counsel for the Respondent to furnish any proof with regard to payment of claim in question, and adjourned the matter to 03.03.2017. Again on 03.03.2017, the Learned Counsel for the Respondent requested time, and finally on 08.03.2017 both the counsels argued and reserved for orders. Since the Tribunal cannot refuse time, when parties requested reasonable time to assist it, the case was adjourned on the above dates duly following principles of natural justice. 3. The brief facts of the case, as set out in Company petition along with material papers filed, are as follows: a) M/s. Geometrix Laser Solutio....
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....four persons. To that extent, the Petitioner relies on the sub-ledger (ignoring the error in the Unsecured Loans Schedule in the Balance Sheet) to establish her claim. Therefore the acknowledged debt of the Petitioner stands at Rs. 75,03,462.00 (Rupees Seventy Five Lakhs three thousand four hundred Sixty Two only) as on 31/03/2015. (iii) Debt Owed as at 31/03/2016 Similarly, the annual audited accounts of the Respondent Company for the year 2015-16 discloses a sum of Rs. 79,36,737/- (Rupees Seventy nine Lakhs Thirty Six Thousand Seven hundred thirty seven only) as being due to the petitioner herein under the heading Unsecured Loans from Director. This is patently incorrect, as Dr. B.V.S. Lakshmi is NOT a Director of the Company. Further, if we proceed from the acknowledged debt of Dr. B.V.S. Lakshmi as on 31/03/2015 standing at Rs. 75,03,462.00 (Rupees Seventy Five Lakhs Three Thousand Four Hundred Sixty Two only). d) The petitioner contends that during the year 2015-16, no repayments were made out of the said Rs. 75,03,462.00 to the Petitioner. Whereas, the Petitioner advances the following sums on the following dates to the Respondent ....
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....n 31.05.2015 was history and, it has been repaid and or adjusted as desired by the Petitioner, and the Petitioner ceased to be a creditor of the Company and thus denied any dues to the Petitioner much less interest. i) Since the petitioner could not get any repayment of her dues, even after the said legal notice, the Petitioner has approached the Hon'ble High Court for the State of Telangana and AP by filing Company Petition bearing C.P. No. 408 of 2016, under section 433(e) & (f) R/w. Sections 434(1)(a) & 439 of the companies Act, 1956 by seeking the following reliefs: a) That M/s. Geometrix Laser Solutions Private Limited, the Respondent herein, may be wound up by this Hon'ble court under the provisions of Sections 434, 435 & 436 the Companies Act, 1956. b) The Official Liquidator High Court, Hyderabad or some other fit and propel person be appointed as liquidator of the Respondent with all powers under the provisions of the Companies Act. 1956. c) That, pending disposal of the main company petition, the official liquidator attached to this Hon'ble Court be pleased to appointed as Provisional Liquidator of th....
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....which are of serious in nature. e. The Petitioner failed to pay any supported documents to prove that she is a financial creditor, more particularly the Respondent Company constituting as a Debtor, to claim any legally enforceable debt against Respondent Company. It is stated that the Petitioner was well aware that Respondent Company itself is entitled to recover an amount of Rs. 88,32,727.05/- from the Petitioner and her daughter, Mrs. B. Kalyana Hyma. It is also stated that the law also recognizes and permit the parties to set-off under Order VIII, Rule 6 of CPC. Apart from that, as stated above, there is a Criminal complaint pending against the Petitioner. f. It is further stated that the Petitioner was the Managing Director of M/s. Supriya Granites Private Limited (currently under liquidation). The Punjab National Bank has filed O.A. No. 629/2002 before DRT, Visakhapatnam against M/s. Supriya Granites Private Limited (D1), B.V.S. Lakshmi (D2/Petitioner herein) and Ors. by seeking to pass an Order-cum-certificate against the Defendants therein directing them to pay a sum of Rs. 1,80,11,735.50/- together with further interest of 12.25%. The said OA w....
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....ay ensure that a winding-up petition is scrutinized more carefully before it is admitted." i. The Respondent further submits that the Petition itself is not in proper format, and even the notice issued by the Counsel is not as postulated in the Insolvency and Bankruptcy Code, 2016 and its rules made there under, more particularly, NCLT Form-V and therefore, on this ground alone, the Petition is not maintainable in law. j. It is also submitted that, Respondent Company is a running Company, and it has no liabilities or claims from any secured creditors including the Banks, and it is meeting all the expenses of salaries to its employees and staff and payment of revenue to the Government, if any orders are passed in the present case, it will affect the smooth functioning of the Company. 5. We have heard Sri K. Arun Kumar, the learned counsel for the petitioner, and Sri K.V. Simhadri, the learned counsel for the respondent, and have carefully considered various pleadings and along with material papers filed by the respective parties. 6. The Learned Counsel for the Petitioner, while retreating all the averments made in the Petition, and in the accompan....
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....no accepted/un-disputed debt in the instant case, and on the other hand, the petitioner herself is due to the Company. d) Another judgment of Hon'ble High Court of Andhra Pradesh, rendered in Vikas Jalan Vs. Nucon Industries Private Limited 1998 (5) ALD 402, 1998 (3) An WR 686, [2001] 103 Comp Cas 343 (AP) This is a case filed under Section 433(c) of the Companies Act for winding up the Respondent Company on the ground of its inability to pay debt. The question considered in the case was whether debt in question was genuine and whether respondent Company has got a bona fide and probable defence to make on facts and law and when the set off plea was available to other parties. The Hon'ble High court, on examining the entire issue including evidence found that the debt in question was found to be bona fide. In the instant case, facts are totally on different footing. As stated above, the petitioner is former founder Director of the Company and several financial transactions in the course of business of Company stated to be transacted and the petitioner has relied upon selective balance sheets of the Company to make her claim. The alleged debt could not be subst....
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....ansaction would not acquire the status of a 'financial debt as the transaction does not have the consideration for the time value of money, which is a substantive ingredient to be satisfied fulfilling requirements of the expression 'Financial Debtor. Ultimately, the Hon'ble Principal Bench has dismissed the application as the applicant did not cover the definition of Financial Creditor' and 'Assured terms 'as required to invoke Section 7 of IBC. Though the facts of above case are different from the present case, but the present petition was also filed invoking same Section 7 of IBC and thus interpretation of section is relevant for the present case. 11. The Hon'ble Supreme Court in Amalgamated Commercial Traders Private Limited Vs. A.C.K. Krishnaswami: (1965) 35 Company Cases 456 (SC), held as follows: "It is well-settled that a winding up petition is not a legitimate means of seeking to enforce payment of the debt, which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatized as a scandalous abuse of the....
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....ebtor or the corporate debtor, as the case may be. Debt is also defined under section 3(11), it means a liability or obligation in respect of a claim which is due from any person and includes a financial debt and operational debt. 16. In the light of above proposition of law and the definition of Financial Creditor, we will examine the facts of present case basing on the documents filed by the petitioner in her support; a) As stated supra, the petitioner put a total claim of Rs. 91,47,864.00 as on 31.03.2016 covering a period of 3 years from March, 2014 to March 2016, owed from the Company. In support of the claim, the petitioner enclosed a copy of Schedules to Balance sheet (page No. 33 to 35 Attachment 1-A) in which the name of Dr. B.V. Lakshmi was shown under Schedule-D un-secured loan as Rs. 38,74,767/- and closing balance to the credit of petitioner as Rs. 41,04,391/- as on 31.03.2014. Another attachment enclosed is Attachment 1-B, page No. 36-40. At page No. 36 (notes to Accounts-Balance sheet, the name of petitioner was shown under un-secured loans for Rs. 89,85,793/- as on 31.03.2014 and in Group summary of un-secured Loans as 1 April, to 31 March, 2015 (p....
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....r daughter's name as First Director of the Company. In fact, that issue was also under investigation by the police as mentioned supra. It cannot be disputed that the petitioner was the first director of the Company as she had admittedly resigned as Director w.e.f. 01.04.2007 vide her letter dated 14th March, 2007. 18. The Respondent has also filed relevant folios of Ledger Account of Dr. B.V.S. Lakshmi and Kalyana Hyma Recoverable Account (page No. 175 to 181) for period from 1st April 2016 to 27th February, 2017 by debiting various illegitimate payments made by the petitioner to her Account, and set off of the balance payable on Kalyana Hyma against the petitioner as per the provisions of order VIII Rule 6 of CPC. 19. The petitioner is still a shareholder holding 5,57,946 shares of the Company constituting 14.31 %. She has transacted several financial transactions with it and she has also filed Winding up petition against the Company. The petitioner is fully well aware that a criminal case is pending and set off was also made with reference to her daughter's transactions, and she herself also filed a case making allegations/counter allegations against each other. All....