Delhi High Court
Madison Communications Pvt. Ltd. vs Som Distilleries And Breweries Ltd. on 14 July, 2004
Equivalent citations: [2005]126COMPCAS786(DELHI)
Author: A.K. Sikri
Bench: A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. The petitioner has filed this petition under Section 433(e) and Section 434 of the Companies Act, 1956 (hereinafter to be referred as "the Act" for short) praying for winding up of Som Distilleries and Breweries Ltd., respondent herein. It is the case of the petitioner that respondent owes a sum of Rs. 1,23,04,312.50 to the petitioner and it has failed to pay this amount even after statutory notice dated June 7, 2001 under Section 433(e) of the Act was served upon the respondent. According to the petitioner, therefore, it is clear that the respondent-company is unable to pay the debt.
2. The circumstances under which the amount became due are stated in the petition by alleging that in or about July, 1999 the respondent approached the petitioner to act as the respondent's advertisers and media managers to advertise the products of the respondent on various channels. Agreement for this purpose was entered into. Terms and conditions were recorded in the letter dated July 29, 1999. The advertisements were to be telecast on various channels at the rates approved by the respondent-company and the petitioner was to get its commission thereon. The petitioner was to raise invoices every month in the manner indicated in the agreement and the amount was payable within 30 days from the end of the month in which the work was completed except in the case of TV and radio where bills were payable within 15 days. Interest of 18 per cent. per annum was provided for over due payments. The agreement was terminable by either party giving three months written notice. The petitioner-company carried out its obligations by advertising products of the respondent-company on various channels and raised invoices from time to time upon the respondent-company aggregating Rs. 2,21,18,618.50. The respondent made on account part payments from time to time aggregating to a sum of Rs. 1,13,82,211 and failed to clear the balance outstanding dues. The petitioner had called upon the respondent to make the payment but on one pretext or the other the respondent-company failed and neglected to pay the outstanding sum. Discussions took place between the parties on December 4, 2000 and thereafter the respondent wrote letter dated December 6, 2000, admitting its liability by stating that the respondents were drawing firm plans to clear the outstanding smoothly and were enclosing a demand draft in favor of the petitioner till the respondent send the petitioner their plan for whole payment. This draft was for Rs. 10 lakhs. However, vide letter dated December 14, 2000 the petitioner requested the respondent to give a payment plan and at least 50 per cent. must be cleared immediately as the petitioners were to make payment to various channels. After this letter the respondent made further payment of Rs. 15 lakhs to the petitioner and vide letter dated January 5, 2001, while acknowledging this payment the petitioner stated that outstanding amount was "over a crore of rupees". Since according to the petitioner, no reply was given it was implied admission on the part of the respondent to the aforesaid outstanding amount. It is also stated that thereafter the respondent wrote letter dated February 16, 2001, asking the petitioner to bear with the respondent as they were facing some difficulties and assured that they would start clearing the outstanding from April 15, 2001, and would pay full amount by May 15, 2001. This, contends the petitioner, also signifies the admission of liability on the part of the respondent. As the amount was not paid even when some more reminders were sent by the petitioner, the petitioner sent legal notice dated June 7, 2001 in which it was specifically mentioned that for the period from September, 1999 to May, 2001 the petitioner had carried out work of advertising aggregating to a sum of Rs. 2,21,18,618.50 against which only a sum of Rs. 1,13,82,211 was paid leaving a balance of Rs. 1,07,36,407.50 towards principal amount and after adding 18 per cent. interest, total amount payable was Rs. 1,23,04,312.50. The respondent-company gave the reply and as an afterthought disputed the liability. The tenor of this reply would show that even those factual aspects which were earlier accepted were denied in this reply which showed mala fide intentions on the part of the respondent-company. This has forced the petitioner to file the present petition.
3. On the basis of the aforesaid averments including the communications noted above learned counsel for the petitioner submitted that letters dated December 6, 2000 and February 16, 2001 would show that the respondent-company had admitted the liability. It was stated that although part payments were made, in the communication dated February 16, 2001 the respondent-company itself accepted the difficulties and promised to clear the outstanding by May 15, 2001 but no payment was made. His submission was that in reply dated July 10, 2001 to legal notice, bogey of seizure of the respondent's records by the Income-tax Department was raised to contend that the respondent was unable to properly examine the demand raised by the petitioner as the income-tax raid was conducted on January 10, 2001, whereas liability to pay was admitted much prior thereto, i.e., on December 6, 2000. It was further submitted that in the communication dated August 23, 2001, by the petitioner's counsel to the respondent's counsel, the petitioner had still offered the respondent to depute its authorised representative to visit the petitioner's office for the purpose of taking inspection and photocopies of the statement of accounts with all contracts, bills, payment details and other papers but the respondent had failed to respond to the aforesaid call which clearly showed that it had mala fide intentions and unwillingness on the part of the respondent to tally the accounts. Referring to the statement of account furnished by the respondent along with its reply learned counsel contended that such a statement was false on the face of it inasmuch as : (A) col.8 thereof showed "debit note 10 per cent. of billing" whereby 10 per cent. from every bill was deducted whereas there was no such agreement to this effect ; (B) col. 7 showed certain debit notes which were never received by the petitioner ; and (C) against bills at serial Nos. 23,26,29 and 66 payments were shown through certain cheques whereas those cheques were of the debts before the issuance of the bills from which one could infer that the cheques were not towards the payment of the bills in question. He referred to the statement of account filed as annexure P1 with the rejoinder showing the amount due from the respondent as claimed in the petition and, therefore, it was clear that respondent was trying to avoid making payment by raising sham defense.
4. Learned counsel for the petitioner further submitted that even in these proceedings the court could go into the issue as to whether defense raised by the respondent was sham and the proceedings were analogus to summary proceedings stipulated under Order xxxvII of the Code of Civil Procedure. For this proposition learned counsel referred to the following observations contained in the judgment of this court in the case of Standard Chartered Bank v. Jain Studio Ltd., [2003] 66 DRJ 709 : [2004] 119 Comp Case 881, 883 :
"It is trite to state that winding up proceedings partake of summary nature and an admitted debt must be shown to be in existence for the petition to be entertained. Where a dishonest defense is presented, which is in the nature of moonshine, the company court would be empowered to proceed with the petition even in the absence of an admitted debt."
5. Learned counsel also relied upon another judgment of this court in the case of Tata Iron and Steel Co. Ltd. (TISCO) v. Jhalani Tools Ltd., [2003] III AD (Delhi) 547 for the proposition that sham and afterthought defense raised in reply to the company petition could be rejected by the court and specifically relied upon para. 11 of the said judgment which makes the following reading :
"These letters do not reflect any dispute of the debt, raised by the respondent-company nor the violation of the terms of the agreement by the petitioner-company, alleged by the JTL in the reply filed in response to the winding up petition. I am, therefore, clearly of the view that the disputes sought now to be raised in response to the TISCO's claims for repayment are obvious afterthoughts pleaded in the reply and the contemporaneous correspondence and documents between the parties do not reflect the existence of a dispute or a violation of the terms of the agreement by the petitioner-company. In this respect, I am not taking into account the letter dated February 23, 1998, cited by the petitioner which was issued by a mediator between the parties as it was private correspondence and was termed as personal and confidential."
6. Learned counsel for the respondent, on the other hand, argued that this petition was not even maintainable as there was no debt acknowledged ; even the exact amount payable was not determined ; the petition was based on the statement of account only which could not be the basis of winding up petition as the petitioner was required to substantiate the said statement of account with cogent evidence ; the petition filed was totally vague ; admittedly there was no account settled between the parties and thus no definite amount allegedly payable by the respondent to the petitioner stood crystallized. It was submitted that the documents of the petitioner itself would demonstrate that even the petitioner was not clear as to how much amount was payable as different amounts were demanded in those communications improving upon its stand with the passage of time. It was also submitted that the petition as filed was not even proper in the eyes of law as there was no whisper in the petition about the non-viability of the functioning of the respondent-company or that substratum of the company had disappeared. Learned counsel further submitted that as per the respondent only a sum of Rs. 4,93,960 was due which was accepted even in the respondent's reply dated July 10, 2001 to the petitioner's statutory legal notice and in these proceedings the respondent had paid, to show its bona fide, a sum of Rs. 5 lakhs on August 7, 2002 of course without prejudice to the rights and contentions. Number of judgments were cited in support of the submission that such a petition was not maintainable reference to which would be made at the appropriate stage.
7. Section 433(e) of the Act gives a ground to a creditor to file a winding up petition if a company is "unable to pay its debt". Therefore, pre-requisite of a petition filed under this provision is that there must be a "debt" payable by the company. When the amount payable is established only then it would be termed as a "debt". In the case of Pradeshiya Industrial and Investment Corporation of U. P. v. North India Petro Chemical Ltd. while interpreting Section 433(e) of the Act the court held that following ingredients had to be proved :
1. There must be a debt ; and
2. The company must be unable to pay the same.
8. The court held that "a debt under this section must be clear or a definite sum of money payable immediately or at a future date". In so far as the requirement of inability to pay the debt is concerned, the court held that that should be taken in the commercial sense, i.e., the company was unable to meet current demands and for this proposition the court quoted following observations of William James V. C. from the judgment in the case of European Life Assurance Society, In re [1869] LR 9 Eq 122 (page 842 of 79 Comp Cas) :
"plainly and commercially insolvent-that is to say, that its assets are such, and its existing liabilities are such, as to make it reasonably certain as to make the court feel satisfied-that the existing and probable assets would be insufficient to meet the existing liabilities."
9. It was also held that if there was a bona fide dispute about the debt and the defense was a substantial one, the court would not wind up the company. It was also pointed out that an order under Clause (e) is discretionary. Thus even if two ingredients are established still in a given case court could refuse order of winding up if circumstances warranted that it was not proper or just or equitable to exercise such a discretion. What should be the approach of the court in dealing with such kind of winding up petition is stated in paras. 28 and 29 of the judgment and it would be apt to reproduce the same (page 842) :
"While dealing with the scope of Section 433(e) this court had occasion to hold the following [at page 131 in Madhusudan Gordhandas and Co. v. Madhu Woollen Industries Pvt. Ltd., (the case relied on by learned Solicitor General)] (SCC pages 638-39, paras. 20-22) Two rules are well settled. First, if the debt is bona fide disputed and the defense is a substantial one, the court will not wind up the company. The court has dismissed a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable. (see London and Paris Banking Corporation, In re [1874] LR 19 Eq 444). Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been done properly was not allowed. (see Brighton Club and Horfold Hotel Co. Ltd., In re [1865] 35 Beav 204).
Where the debt is undisputed the court will not act upon a defense that the company has the ability to pay the debt but the company chooses not to pay that particular debt. (see A Company, In re [1894] 94 SJ 369). Where, however, there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantify the debt precisely. (see Tweeds Garages Ltd., In re [1962] 32 Comp Case 795 (Ch D) ; [1962] Ch 406). The principles on which the court acts are first that the defense of the company is in good faith and one of substance, secondly, the defense is likely to succeed in point of law, and, thirdly, the company adduces prima facie proof of the facts on which the defense depends.
Another rule which the court follows is that if there is opposition to the making of the winding up order by the creditors the court will consider their wishes and may decline to make the winding up order. Under Section 557 of the Companies Act, 1956, in all matters relating to the winding up of the company the court may ascertain the wishes of the creditors. The wishes of the shareholders are also considered, though, perhaps, the court may attach greater weight to the views of the creditors. The law on this point is stated in Palmer's Company Law, 21st edn., page 742, as follows :
This right to a winding up order is, however, qualified by another rule, viz., that the court will regard the wishes of the majority in value of the creditors, and if, for some good reason, they object to a winding up order, the court in its discretion may refuse the order'.
The wishes of the creditors will however be tested by the court on the grounds as to whether the case of the persons opposing the winding up is reasonable ; secondly, whether there are matters which should be inquired into and investigated if a winding up order is made. It is also well-settled that a winding up order will not be made on a creditor's petition if it would not benefit him or the company's creditors generally. The grounds furnished by the creditors opposing the winding up will have an important bearing on the reasonableness of the case. (see P. and J. Macrae Ltd., In re [1961] 31 Comp Case 424 (CA) ; [1961] 1 ALL ER 302).
It is beyond dispute that the machinery for winding up will not be allowed to be utilized merely as a means for Realizing its debts due from a company. In Amalgamated Commercial Traders (P.) Ltd. v. A.C.K. Krishnaswami [1965] 35 Comp Case 456 this court quoted with approval the following passage from Buckley on the Companies Acts, (13th edition, p. 451) :
'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 stigmatised as a scandalous abuse of the process of the court'."
10. Whether the petitioner has been able to satisfy the requirement of Section 433(e) of the Act in the manner pointed out in the aforesaid judgment is the question which has to be gone into. From the correspondence referred to and relied upon by the petitioner it would be seen that it is nowhere stated as to what definite sum is payable by the respondent to the petitioner. In its letter dated January 5, 2001, the petitioner only states that over a crore of rupees was due without mentioning the exact amount. Thereafter, we have on record letter dated February 26, 2001 of the petitioner wherein demand of Rs. 96.24 lakhs is made. This letter is addressed to the respondent-company. However, from another letter dated February 19, 2001 of the petitioner itself it is mentioned that "total outstanding of both Som Distilleries and Som Breweries is Rs. 96.24 lakhs". It may be recorded at this stage that the petitioner was dealing with the respondent, namely, Som Distilleries and Breweries Ltd. as well as its sister concern, namely, Som Breweries. Thus, although in letter dated February 26, 2001, amount of Rs. 96.24 lakhs is claimed from the respondent-company, in letter dated February 19, 2001, it is stated that this amount is due from two companies, namely, the respondent-company and its sister company without specifying as to what exact amount out of Rs. 96.24 lakhs was due from the respondent-company. Thus, even here the petitioner was not sure about the exact amount which according to it was payable by the respondent-company. Although the demand was made to the respondent-company the amount allegedly payable by other company was also included. The matter does not rest here. In letter dated May 8, 2001, written thereafter amount demanded is Rs. 1.03 crores. Although counsel for the petitioner tried to explain by saying that the amount got increased because of interest added thereon, this may not be the correct explanation as in legal notice dated June 7, 2001, the principal amount demanded itself is Rs. 1.07 crores and with interest the total amount demanded is Rs. 1.23 crores approximately. Furthermore, most curious fact which needs to be mentioned with emphasis is that after this legal notice and reply thereto the petitioner had written another letter dated August 2, 2001 and as per this letter, the outstanding amount payable by the respondent-company as well as Som Distilleries Ltd. was Rs. 61.15 lakhs. Thus, varying amounts are claimed by the petitioner in different communications which is sufficient to indicate that even the petitioner is not clear as to what definite amount is due from the respondent. Therefore, first ingredient of Section 433(e) itself, namely, there must be a "debt", i.e., pre-determined or definite sum of money payable by the respondent-company, remains unsubstantiated.
11. The matter does not rest here. Along with the petition the petitioner has filed exhibit A giving "particulars of claim" wherein a sum of Rs. 1,28,49,659.50 is demanded stating that interest is added at the rate of 18 per cent. per annum on Rs. 1,07,36,407.50. No details as to how this amount was payable in the form of statement of account, etc., were annexed. When in reply to the petition the respondent raised the objection that the petition was vague and there was no statement of account between the parties, in the rejoinder the petitioner filed his statement of account. However, that is the statement of account with no acceptance or acknowledgment by the respondent. The petition on the basis of such a statement of account may not be maintainable. In the case of Bareilly Electricity Supply Co. Ltd. v. Workmen, , the Supreme Court observed as under (page 259) :
"When the appellant produced the balance-sheet and profit and loss account of the company, it does not by its mere production amount to a proof of it or of the truth of the entries therein. If these entries are challenged the appellant must prove each of such entries by producing the books and speaking from the entries made therein. If a letter or other document is produced to establish some fact which is relevant to the enquiry the writer must be produced or his affidavit in respect thereof be filed and opportunity afforded to the opposite party who challenges this fact."
12. Similarly, to the same effect Supreme Court held in the case of Manish Dixit v. State of Rajasthan, [2001] 1 SCC 596, 601, as under :
"True, Section 34 contains the rider that 'such statements shall not alone be sufficient evidence to charge any person with liability'. In the first place the provision deals only with 'books of account'. It primarily pertains to pecuniary transactions. The expression 'books of account' means books in which merchants, traders or businessmen generally keep their accounts, i.e., statements of debits and credits or receipts and payments. A register kept at the counter of a hotel need not contain any statement of account. So until it is shown that such register also pertained to the pecuniary transactions involving the customers of the hotel the same cannot be treated as a book of accounts. In the second place, even if it is assumed that a register kept in a hotel can be treated as a book of accounts, the entry therein cannot become the sole premise to charge a person with liability. The entry found in the register kept at Sanjay hotel can only show a circumstance that A-2 (Manish Dixit) has written in it the name 'Rakesh Chander Sharma' as the person who occupied a particular room in the hotel on February 24, 1994. Why did A-2 write such a name in the register on the said date which was the immediately following date of the murder of Gulshan Makhija ? He only knows why he wrote a different name. In the absence of any explanation from him it is open to the court to draw an inference that A-2 (Manish Dixit) had some reasons to conceal his identity from the hotel people and hence he wrote a pseudonymous name in the register."
13. It may be that once accounts were settled some amount is found payable by the respondent-company. The petitioner has filed its own statement of account which is disputed by the respondent and respondent has filed its own statement of account. However, it is not the function of this court to minutely go into those accounts and undertake the exercise by determining the exact amount payable. A winding up petition cannot be resorted to as a short cut method to make money claims.
14. The Supreme Court in the case of Amalgamated Commercial Traders (P.) Ltd. v. A.C.K. Krishnaswami [1965] 35 Comp Case 456 held as under (page 463) :
"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 process of the court. At one time petitions founded on disputed debt were directed to stand over till the debt was established by action. If, however, there was no reason to believe that the debt, if established, would not be paid, the petition was dismissed. The modern practice has been to dismiss such petitions. But, of course, if the debt is not disputed on some substantial ground, the court may decide it on the petition and make the order'." (vide Buckley on the Companies Acts, 13th edition, page 451).
15. The Madras High Court in the case of Nawabzada Captain Syed Murtasa Ali Khan v. Stressed Concrete Constructions Pvt. Ltd. [1961] 31 Comp Case 84, 86, held as under :
"The law regarding disputed debts as a defense for not proceeding with a winding up petition is well settled, both in England and in India under their respective Companies Acts. In fact the Indian Companies Act is practically based upon the English Companies Act, 1948. In regard to this bona fide disputation of debts, the following extracts from the standard authorities on company law in England and India are apposite :
England : Palmer's Company Precedents, 16th edition, Part 2, page 34, has the following to say :
'It is now well settled that a petition for winding up with a view to enforcing payment of a disputed debt is an abuse of the process of the court, and should be dismissed with costs.
But, of course, if it is shown that the alleged dispute is not a bona fide one, the objection to the petition fails. Thus, it is not uncommon for a company after again and again begging for time, for payment of a debt, to spring on the petitioner, at the last moment, the assertion that the debt is a disputed one. Such a defense is naturally open to great suspicion, and meets with no favor from the court'.
A winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. A petition presented obstensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatised as a scandalous abuse of the process of the court. At one time petitions founded on disputed debt were directed to stand over till the debt was established by action. If, however, there was no reason to believe that the debt, if established, would not be paid, the petition was dismissed. The modern practice has been to dismiss such petitions. But, of course, if the debt is not disputed on some substantial ground, the court may decide it on the petition and make the order. The fact that the company has obtained unconditional leave under R. S. C. Order 14 to defend an action for debt does not preclude the court, when considering a petition for winding up the company founded on the debt, from finding on the evidence that the debt was owing and that the company could not pay its debts.
Great damage might obviously be done to a solvent company by a winding up petition presented by an unreasonable creditor, whose debt the company are able and willing to pay if established, but to whom they bona fide believe they are not indebted. In such a case, on writ issued by the company, an injunction will be granted to restrain the creditor from presenting a petition. If a petition has been presented which the court finds to be an abuse of process, the court may on motion stay all proceedings under it or dismiss it The principle upon which the court will forbear from deciding the dispute as to liability for immediate payment and making a winding up order in case it decides it against the company, is that winding up proceedings are not intended to be exploited as a normal alternative to the ordinary mode of debt-realisation, and that it is more convenient that claims should be investigated and decided in a regular action. Even though there is no dispute as to the existence of the debt, where there is a bona fide dispute as to the company's liability for immediate payment, no winding up order can be made till the dispute is decided. If it finds the issue regarding bona fide in favor of the company, it will ordinarily not proceed further and decide the dispute itself, or it will either dismiss the petition for winding up or keep it pending till the creditor has established his claim in a regular action."
16. In the present case, I have already indicated that there is no definite amount determined which is payable by the respondent to the petitioner and, therefore, no "debt" is established within the meaning of Section 433(e) of the Act. Further, it cannot be said that the defense or the dispute to the claim raised by the respondent to the petitioner's claim is not bona fide.
17. I also find that there is no averment that the respondent-company is not running its business profitably or that it has lost its substratum. After all, passing of an order of winding up under Section 433(e) falls within the discretionary jurisdiction of this court. The court has to exercise this discretion on sound judicial principles.
18. The Gujarat High Court in the case of Ashok Fashions Ltd v. Meghdoot Acid and Chemicals [1998] 91 Comp Case 655 has held as under (page 663):
"What course is to be adopted by the company court after hearing the petitioner claiming to be a creditor of the company and that the company, though having served with a statutory notice has neglected to pay the amount and in spite of the notice, the company has chosen not to appear before the court ? There must be material produced by the creditor petitioner before the company court from which it can be found out that a company is a defunct company, it has closed its business, the labour force is already discharged and its manufacturing activities have been closed since long and there are no commercial activities. (If there is temporary closure or temporary suspension, it is required to be borne in mind). These circumstances if present would indicate that there is no question so far as the company is concerned, to revive its operation and, therefore, there cannot be difficulty in admitting and advertising, because the company is not going to suffer any more as its position is not going to alter by the filing of such petition. If on the record sufficient material is placed to indicate that the company is a defunct company and the process is served in accordance with law, the court may adopt the course of even admitting the petition and straightaway directing the advertisement of the company petition."
19. The Allahabad High Court in the case of Alliance Credit and Investments Ltd. v. Khaitan Hostombe Spinels Ltd. [1999] 95 Comp Case 436 has held as under (page 445) :
"In view of the settled position of law it is to be seen whether the petitioner has pleaded the required facts in the present petition before me. I do not find the requisite pleadings in the petition. In paragraph16 thereof, it has been stated that the company has failed and neglected to pay the balance amount of the lease rental. In paragraph 17 it has been stated that in view of the facts and circumstances stated hereinbefore, it is evident that the company is unable to pay its debts. There are no allegations that the company is commercially insolvent or that the substratum of the company is lost. From the perusal of the petition it would be apparent that the pleas taken therein pertain to Section 434(1)(a) of the Act. The requisite pleadings under Section 433(e) or 434(1)(c) of the Act are wanting. As the petition lacks the requisite facts as required under Sections 433(e) and 434(1)(c) of the Act, the petitioner cannot claim the advantage thereof and fall back upon the aforesaid provisions after failing to satisfy the court regarding the validity of the notice under Section 434(1)(a) of the Act."
20. In view of the factual position operating in this case as discussed in detail hereinabove, judgments cited by the petitioner will have no application. It may be interesting to note that this court in the case of Standard Chartered Bank [2003] 66 DRJ 709 ; [2004] 119 Comp Case 881, 883 while pointing out that winding up proceedings partake of the character of a summary nature, emphasised at the same time that the admitted debt must be shown to be in existence and the petition in that case was also dismissed which would be clear from reading of paras. 5 and 6 as under :
"5. The observations of the hon'ble Division Bench were made in the context of a civil suit and not of a winding up petition. Myriad defenses could be available to the respondent-company in ordinary civil proceedings for recovery, which would be severely hampered if the present petition is continued. I am also not certain that an accidental and mistaken clearance of a cheque in a current account where no overdraft or loan facilities have been allowed, could nonetheless be treated as such. Such a transactions would be sans consideration and hence fall in the genre of unenforceable contracts. In a regular suit, the petitioner may succeed in proving the presence of consideration, directly or indirectly.
6. In these circumstances, the present petition cannot be entertained. The petitioner has, however, other remedies which may be availed of."
21. Dismissed.
22. Consequently, this petition is dismissed.