HIGH COURT OF BOMBAY
Dr. Mangat Rai Goyal
Moraj Finanz (P.) Ltd.
Appeal No. 347 of 2012Online GST Certification Course by TaxGuru & MSME- Click here to Join
Co. Petition No. 290 of 2011
January 8, 2013
M.S. Sanklecha, J.
By this appeal, the appellant challenges the order dated 24.04.2012 of the Learned Single Judge dismissing the appellant’s petition for winding up of the respondent-company under the provision of Companies Act, 1956.
2. The appellant had by a notice dated 11.12.2010 under section 434 of the Companies Act, 1956 issued to the respondent-company calling upon the respondent-company to make a payment of Rs. 2 crore allegedly payable to him by the respondent-company. This was on the basis that out of total consideration of Rs. 7 crore for sale of his leasehold rights under an agreement dated 10.02.2010 an amount of Rs. 2 crore had not yet been paid. The respondent-company responded by letter dated 30.12.2012 disputing that any amount was due and payable by them to the appellant. The case of the respondent was that the amount of Rs. 2 crore which had been admittedly withheld by them was utilized to settle claims of the third parties as agreed upon between them in the agreement dated 10.02.2010.
3. The Learned Single Judge after examining the agreement dated 10.02.2010, which provided that the amount of Rs. 2 crore would be retained by the respondent so as to settle the claims of the third parties made on the appellant in respect transfer of the leasehold plot along with the plinth of the proposed building. This aforesaid agreement also provided the names of the persons to whom the appellant was required to make payment as they had filed suits in the Vashi- Thane court with regard to the property agreed to be purchased by them from the appellant. The respondent pointed out before the Learned Single Judge that the amount of Rs. 2 crore which had been retained had been used by them to settle the claims of various parties in relation to the plot of land sold by the appellant to the respondent under the agreement dated 10.02.2010. The Learned Single Judge was satisfied that the claim of Rs. 2 crore being made by the Appellant is a genuinely disputed claim. Therefore, the same would have to be adjudicated before the regular court and the company jurisdiction cannot be exercised to enforce a disputed debt. In the circumstances, the petition was dismissed.
4. In appeal, the appellant appearing in person submits that the amount of Rs. 2 crore is payable by the respondent to him, as they have fraudulently diverted the amounts by claiming the same were paid to meet the appellant’s obligation to third parties. The Appellant states that the aforesaid alleged payments ought not to have been made by the Respondent. The Counsel for the respondent points out that the appellant had executed a power of attorney in their favor on 05.03.2010 to inter alia deal with all claims in respect of the property transferred by agreement 10.02.2010. We further find that not only the Agreement dated 10.02.2010 provides the names of the parties whose claims have to be settled but the respondents have also filed an affidavit with supporting evidence pointing out the persons to whom the payment was made and in support thereof evidence of the reasons for the same. The entire case of the appellant that the documents under which payments were made were fraudulent is a matter which would require investigation/adjudication by way of suit. The appellant may have a very good case on merits and would possibly be able to establish in an appropriate proceeding that the respondent have acted in a fraudulent manner and defrauded him to Rs.2 crore. However, in proceedings for winding up the company, the court cannot adjudicate upon a bona fide disputed debt. It is well settled principle of company law that wherever there is a bona fide disputed debt, the petition for winding up of a company is not appropriate remedy to enforce the debt. In the circumstances, we find no fault with the order of Learned Single Judge dated 24.04.2012.
5. Accordingly, the appeal is dismissed with no order as to costs.