HIGH COURT OF KARNATAKA
Besto Clutches & Spares
CO. PETITION NO. 132 OF 2000
NOVEMBER 7, 2012
1. This COP No. 132/2000 came to be allowed on 24.09.2010 and an order of winding up under section 433(e)(f) of the Companies Act was passed. Being aggrieved by the same, the respondent preferred an suit in OSA No.45/2010 before the Division Bench of this Court and the same came to be allowed and remanded the matter for fresh consideration by its order dated 16.09.2011. While allowing the OSA, an order passed in COP No. 132/2000 was set aside and it was further observed by the Appellate Court that the parties to be given an opportunity to lead the evidence and pass the orders thereafter. Hence, the present petition.
2. It is the case of the petitioner that, respondent-company was in occupation of the premises belonging to the petitioner under lease license agreement. Since, the respondent-company failed to vacate the premises and pay the licence fee, the petitioner filed a suit in LE suit No.32/38-1992 on the file of the Small Causes Court at Mumbai. During the pendency of the said suit, the parties arrived at compromise and the suit came to be disposed of in terms of the compromise dated 31.03.1992. The respondent filed Civil Revision Petition No. 125/1995 before the High Court of Judicature, at Mumbai and the Court remanded to proceed with the case. The Execution came to be closed by its order dated 24.02.1995 in which the petitioner was directed to refund Rs. 22,00,000/- to the respondent-company and in turn, the respondent-company had agreed to vacate the vacant possession of the schedule premises. With regard to the Municipal Tax, Telephone charges etc, liberty was reserved to the petitioners to agitate the same before the Appropriate Forum. In view of the liberty reserved in CRP No. 125/1995, the petitioner preferred this present petition.
3. In the present petition, the prayer made is in respect of the arrears of rent which was part of the consent terms dated 31.03.1992 in LE Suit No.32/38-1992.
4. The learned counsel for the petitioner submits that, the respondent has failed to pay the agreed charges for the period from 1992 to 1995. Hence, Statutory notices were issued on 17.09.1996 and 12.10.1996. The respondent-company did not reply to the 1st statutory notice dated 17.09.1996 and replied to the statutory notice dated 12.10.1996.
5. The learned counsel for the respondent company submits to dismiss this petition for the following grounds namely that, the agreement entered into between the parties have been settled mutually as per Annexure-G in LE Suit No.32/38-1992 in terms of the consent terms and at para 8 of the said consent terms, the defendant was not liable to pay any other amounts for their use and occupation of the suit premises till they vacate the same as provided therein. The said consent terms were accepted by both the parties and decree was drawn according to the terms. The execution proceedings were initiated, by the petitioners, during the pendency of the same, the respondent-company filed Revision petition in CRP No. 125/1995 and the Revision Petition came to be closed by directing the petitioner to hand over Rs. 22,00,000/- (Rupees Twenty Two Lakh only) and the parties accepted the same and liberty is reserved to agitate with regard to the arrears of Municipal Tax, compensation, telephone and other charges. In view of the liberty reserved, it is open to the petitioners only to make the claim in respect of the liberty which was granted. In the said revision petition, it has been observed by the Court that, both the parties shall get particulars of the pending litigation between them which are to be withdrawn by the respective parties. In the light of the observation made by the Hon’ble Court, what is left to petitioner is in respect of the liberty reserved to agitate in respect of municipal tax, compensation etc. In view of the order of the Hon’ble High Court, premises has been handed over and in turn, the petitioner has handed over Rs.22,00,000/- advance amount. Hence, there is nothing left between the parties to claim.
6. I heard both sides.
7. Facts of this case has been more particularly dealt by the Division Bench in OSA NO.45/2010. It is specifically observed by this Court as set out in para No.6 that, while dealing with the company petition, this Court has to take all the care and caution and the substance of the respective contentions to be dealt with and if any documentary evidence is produced that also has to be looked into. Thereafter by formulating points for consideration, the case has to be disposed. While remanding the matter, it was further observed that the parties are to be provided an opportunity to lead evidence. In the light of the observation made by the Division Bench the case of both the parties has been examined. When the claim is made by the petitioner for winding up the company, necessary materials has to be taken into consideration, as the Company petition filed before the Hon’ble Court at Mumbai in LE Suit 32/38-1992, the claims made against the respondent-company on the basis of the agreement entered into from 26.02.1992 to 26.03.1992 as per Annexures-C, D and E, in which it has been agreed between the parties that the respondent-company to pay rent which means and included Rs.70,000/- for premises, Rs.38,000/- for furniture and fixtures and Rs.20,000/- towards parking charges. Since, the respondent company committed default, the petition has been filed before the Bombay High Court. When the matter was pending before the High Court, the parties entered into a compromise settlement. This claim made by the petitioner is that from the date of the suit i.e. 1992 to 1995, the respondent-company has not paid arrears. Hence, rightly the present petition is filed.
8. Now this petition has to be examined in order to find out whether the terms entered into between the parties before the Hon’ble High Court at Bombay covers the controversy. In terms of the settlement between the parties an execution petition has been filed. In the meanwhile, during the pendency of the same, Civil Revision Petition No. 125/1995 was filed by the respondent-company. Again in the Revision Petition, an order dated 25.01.1995 was passed in which the respondent-company was granted time till 08.02.1995 and finally, the revision petition filed came to be disposed of in which liberty was reserved to the petitioners to agitate in respect of the claims of municipal taxes etc. But so far as in respect of rental aspect, it was observed by the Hon’ble Court that both parties shall get particulars of the pending litigation between them which are to be withdrawn by the respective parties. The terms of the settlement in LE Suit 32-38/1992 are binding on both the parties in respect of rental agreement. In the statutory notices dated 17.09.1996 and 12.10.1996, if it is examined, then the notice dated 17.09.1996, wherein a sum of Rs.40,96,000/- arises out of rental agreement, and the parties have agreed to withdraw the case that is binding. Hence, the suit does not survive in respect of Annexure-O. The Statutory notice dated 12.10 1996 wherein a sum of Rs. 15,05,772 has been claimed out of municipal taxes, electricity charges etc. In the compromise terms, the condition Nos.1 to 6 at Annexure-A annexed to the petition, the Miscellaneous notice No.513/1995, filed for permission to amend the execution application, the claim made as per Annexure-A which has been filed along with the memo dated 10.01.2005, in which details of the claim has been stated. The Annexure-A which discloses the amount of taxes in respect of the municipal tax for the period from April 1993 to March 1994 is Rs.7,57,928/- and municipal tax for the period from April 1994 to December 1994 is about Rs. 5,68,446/-. The Annexure-A also consists further charges like, electricity charges, telephone charges, municipal taxes and other maintenance charges etc. When these are the claims made in Annexure-A, the same has not been supported by any materials like electricity, telephone and municipal ,bills or even of municipal tax receipts etc. By claiming as per Annexure-A, descriptions are not at all supported and the same should have been claimed by producing original receipts, tax receipts etc. and further the same should have been proved by adducing evidence on behalf of the parties.
9. Though Division Bench has specifically made an observation to provide an opportunity to the parties to lead evidence, that has not been complied by the parties. More particularly the petitioner in proving his claims and virtually the claim is made only on the basis of the typed script and no original material is produced and the parties are not at all examined. Under these circumstances, the demand made in the statutory notice dated 12.10.1996 Annexure-O cannot be construed as debt and though liberty was reserved by the Mumbai High Court to the petitioners to agitate in respect of the those points, without referring to any liberty or opportunity, the same mandates to do that and agitation should be on the basis of the materials and evidence. Hence, second claim on the basis of the legal notice Annexure-P on the basis of Annexure-A does not warrant any interference for the parties under section 433(e) and 434 of the Companies Act. Accordingly, I do not interfere with the order of the same.
10. Accordingly, the company petition is hereby dismissed.