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TaxTMI 
TaxTMI 
TaxTMI 
2018 (6) TMI 647
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....titioner imported the said goods by making remittances to the overseas suppliers and sold the said goods to the company and the firm, respectively on high sea sales basis. The company and the firm had to pay the petitioner, the price of the said goods sold to them together with service charges. On account of the goods sold to the company Rs. 17,59,128/- remained due and outstanding by the company to the petitioner as on March 31, 2019. So far as the said goods sold to the said firm Rs. 6,15,167/- remained due and owing by it to the petitioner as on March 31, 2014. The various cheques issued by the company to the petitioner for Rs. 13,50,731/- were dishonoured upon presentation for encashment and the petitioner instituted proceedings against the company under Section 138 of the Negotiable Instruments Act, 1881 (in short "the N.I. Act"). The petitioner also issued a notice dated April 16, 2014 to the company under Section 434 of the Companies Act, 1956 (in short "the Act of 1956"). Two cheques for the aggregate amount of Rs. 6,15,167/- issued by the said firm to the petitioner were also dishonoured upon presentation for encashment. The petitioner also filed proceedings against the pr....
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....d a copy of the said memorandum of settlement in the application. f) At the time of execution of the said memorandum of settlement dated by a demand draft dated September 25, 2014 the company paid Rs. 1.50 lakhs to the petitioner and issued 9 post dated cheques of various dated in favour of the petitioner. The first post dated cheque dated October 15, 2014 issued by the company in favour of the petitioner for Rs. 1 lakh was honoured upon presentation by the petitioner. However, the post dated cheques dated November 15, 2014, December 15, 2014 for Rs. 1 lakh each issued by the company were dishonoured due to insufficient funds in the bank account of the company. Subsequently, on November 20, 2014 and December 17, 2014 the company paid the defaulted monthly instalments for the month of October, 2014 and November, 2014 of Rs. 1 lakh each to the petitioner in its bank account through NEFT. According to the petitioner, this is evident from its letters dated April 20, 2014 and April 20, 2015 issued by itself to the company, the copies whereof have been disclosed. The post dated cheques dated January 15, 2015, February 15, 2015 and March 15, 2015 of Rs. 1 lakh each issued by the compan....
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....mpany has contested this application and it filed its affidavit in opposition denying the material allegations made against itself in the petition. It is the case of the company that since the petitioner has also sought to realise its dues payable by the firm, this application under Section 433(e) of the Act of 1956 is not maintainable. It is further alleged that since the petitioner had already initiated the proceedings under Section 138 of the N.I. Act against the company and also instituted a police complaint, being Hare Street Case No. 269 dated April 25, 2014 against one of the directors of the company, the present winding up application should outrightly be dismissed as the company ought not to be subjected to double jeopardy. According to the company, after the petitioner lodged the aforementioned police complaint of the Hare Street Police Station, the Police Authorities compelled its director to settle the matter with the petitioner failing the deponent of the affidavit-in-opposition, as the director of the company and his son, the proprietor of the said firm and his son Varun were threatened with immediate arrest. Faced with the imminent arrest and under coercion by the po....
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....the deponent could not dispute that his son Varun Kohli is the proprietor firm and the petitioner sold the said goods to the company and the said proprietor of the firm on High Seas Sales Basis. He submitted that in the instant case receipt of the statutory notice dated July 03, 2015 issued by the petitioner company is not in dispute but the company could not explain as to why it did not reply to the said notice. It was argued for the petitioner that the deponent of the affidavit in opposition filed by the company has not only signed the said memorandum of settlement on behalf of the company, he is also a party to the said agreement as the guarantor for payment of Rs. 20 lakhs by the company to the petitioner. According to Mr. Banerjee, the company executed the said memorandum of settlement and undertook an obligation to pay not only the dues of itself but also that of the firm to the petitioner and in terms of the said memorandum of settlement the company also paid Rs. 1.50 lakhs to the petitioner by a demand draft dated September 25, 2014 and issued nine post dated cheques. Further, the company honoured the post dated cheques dated October 15, 2014, January 15, 2015, February 15,....
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....d by the company as Annexure-"D" to its affidavit-in-opposition it was asked that the entire amount of Rs. 8.50 lakhs was received by the petitioner from the company. It was strongly contended that on the grounds mentioned by the company in its affidavit, the said memorandum of settlement dated September 25, 2014 is not binding upon the company and the present application for winding up of the company should be rejected. The petitioner has founded this application for winding up of the company on the memorandum of settlement dated September 25, 2014 executed by itself, the company and the firm. The deponent of the affidavit-in-opposition signed the memorandum of settlement as the director of the company. He is also a party to the memorandum of settlement as the guarantor for due payment of the sum of Rs. 20,00,000/- by the company to the petitioner. According to the petitioner, in the said memorandum of settlement dated September 25, 2014 the company, as well as the proprietorship firm in clear terms admitted their respective liability to pay Rs. 17, 59,128/- and Rs. 6,15,167/- to the petitioner as on March 31, 2014. The said memorandum of settlement also recorded the offer of th....
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....noured upon presentation for encashment and on November 20, 2014 and December 17, 2014 the company deposited Rs. 1,00,000/- in the bank account of the petitioner through RTGS on account of dihonour of each of the said cheques dated November 15, 2015 and December 20, 2015. The post dated cheques dated January 15, 2015, February 15, 2015 and March 15, 2015 of Rs. 1,00,000/- each issued by the company in favour of the petitioner were honoured on presentation. Once again the cheque dated April 15, 2015 issued by the company in favour of the petitioner was dishonoured on presentation. The company, however, on diverse dates between April 15, 2015 and May 23, 2015 deposited the amount of the said dishonoured cheque dated April 15, 2015, that is, Rs. 1,00,000/- in the bank account of the petitioner through NEFT. So far as the balance post dated cheques dated May 15, 2015 and June 15, 2015 for Rs. 1,00,000/- and Rs. 10,50,000/- both the said cheques were dishonoured on presentation, by the issuing bank on the ground of insufficiency of funds in the account of the company. In the said letters dated April 20, 2015 and May 04, 2015 the petitioner specifically asserted the issuance of the afore....
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....r cancellation thereof. However, till this date the company has not filed any suit or proceeding, against the petitioner, before the competent Civil Court to obtain a decree for cancellation of the said memorandum of settlement. Considering all these facts, the inescapable conclusion to be arrived in this case is that the company issued the said 9 post dated cheques in favour of the petitioner and paid Rs. 8.50 lakhs to the petitioner in discharge of its obligation under the said memorandum of settlement and thereafter it failed to pay the balance sum of Rs. 11.50 lakhs to the petitioner. In its affidavit the company admitted its liability to pay the balance sum of Rs. 11,81,379/- to the petitioner and claimed that it paid Rs. 8.50 lakhs to the petitioner by cheque/RTGS and it paid Rs. 3,31,379 to the petitioner in cash. Such averment by the company in the affidavit was verified by the deponent, the Director of the company, to be true to his knowledge. During the course of the oral argument the learned counsel for the company submitted that inasmuch as the company has nothing to prove such cash payment, it is not pressing the same as it defence to the claim of the petitioner. In th....