Calcutta High Court
Mcnally Bharat Engineering Company ... vs Ritman Commodities Pvt. Ltd on 26 February, 2015
Author: Biswanath Somadder
Bench: Biswanath Somadder
ORDER SHEET
CP No.39 of 2015
IN THE HIGH COURT AT CALCUTTA
Original Jurisdiction
ORIGINAL SIDE
MCNALLY BHARAT ENGINEERING COMPANY LIMITED
Versus
RITMAN COMMODITIES PVT. LTD.
BEFORE:
The Hon'ble JUSTICE BISWANATH SOMADDER
Date : 26th February, 2015.
Appearance:
Mr. Ratnanko Banerji, Sr. Advocate,
Mr. Jishnu Choudhury, Advocate,
Mr. Sidhartha Sharma, Advocate with
Ms. Sristi Barman Roy, Advocate.
..for the petitioners.
Mr. Tilok Bose, Senior Advocate,
Mr. K. Banerjee, Advocate with
Mr. Vivek Jhunjhunwala, Advocate.
..for the respondents.
The Court:-Let the affidavit-of-service filed in Court today be taken on record.
Having heard the learned advocates appearing for the parties and upon perusing the instant application it appears that the petitioning creditor had advanced a sum of Rs.2 crores to the company as an inter-corporate deposit on 5th June, 2014. It further appears from the documents annexed to the instant winding up petition that out of the said Rs.2 crores, a sum of Rs.1 crore was repaid by the company to the petitioning creditor. Thereafter, the petitioning creditor issued a statutory notice dated 3rd December, 2014, which was addressed to the company as well as to the directors and the secretary of the company, individually. The said statutory notice dated 3rd December, 2014 was duly received by the company, but was not replied to.
2
It is submitted by the learned senior counsel appearing on behalf of the petitioning creditor, while referring to various documents annexed to the winding-up petition, particularly, those appearing in pages 24,25,26,27,28 and 29, that there is a clear and unequivocal acknowledgement of debt by the company and also its inability to pay off the debt.
On the other hand, the learned senior counsel representing the company draws this Court's attention to the statutory notice dated 3rd December, 2014, and submits that instead of addressing it to the company's registered address only, the same has been also addressed to the directors and the secretary, individually. As such, it cannot be held to be a proper statutory notice. He further submits that from the copy of a document, being annexure "A" at page 22, of the petition, it would appear that a sum of Rs.2 crores was paid by the company to the petitioning creditor on 3rd June, 2014 and there is no reflection of such transaction in the winding-up petition. He also refers to and relies upon the following judgements of the Supreme Court :-
(i) National Conduits (P) Ltd. Vs. S.S.Arora, reported in AIR 1968 Supreme Court 279.
(ii) M/s. Madhusudan Gordhandas & Co. Vs. Madhu Woolen Industries Pvt. Ltd., reported in AIR 1971 Supreme Court 2600.
After considering the submissions made on behalf of the respective parties, it appears from the documents annexed to the winding-up petition, particularly, those which appear in the pages referred by the learned senior counsel appearing on behalf of the petitioning creditor that there exists a clear 3 acknowledgement of debt by the company in respect of the inter-corporate deposit of a sum of Rs.one crore, which was paid by the petitioning creditor to the company. As observed earlier, the statutory notice dated 3rd December, 2014, was duly received by the company, but was not replied to. As such, not only there exists a presumption of acknowledgment of debt by the company, the documents annexed to the winding-up petition reveal a clear acknowledgement of such debt as also the company's inability to pay off such debt. The submission made on behalf of the company with regard to the statutory notice not being a proper statutory notice, does not hold much water. Mere inclusion of names of directors and the secretary of the company in the statutory notice and sending copies of the notice to their respective residential addresses cannot be held to be so fatal so as to come to a conclusion that the statutory notice was not a proper notice or bad in law. What is required to be seen from the statutory notice is whether it has been properly addressed to the company, at its known registered address or not, irrespective of whether the notice has been additionally addressed to the directors and the secretary of the company, individually.
With regard to the other submission made on behalf of the company in respect of a transaction made on 3rd June, 2014, whereby the company paid a sum of Rs.2 crores to the petitioning creditor, the same is of no relevance at all so far as the claim made out by the petitioning creditor in the instant winding-up petition is concerned. It would have had relevance only if such payment was made after 5th June, 2014.
4
There cannot be any quarrel with the principles of law laid down by the Supreme Court in the two judgments relied upon by the learned advocate representing the company. The Supreme Court, in the said two judgments, has laid down the practice and procedure required to be followed by a High Court while entertaining a winding-up petition. The principles on which the Court acts are first that the defence of the company is in good faith and one of substance; secondly, the defence is likely to succeed on a point of law and thirdly, the company adduces prima facie proof of the facts on which the defence depends.
None of the three principles, as stated above, are present in the company's defence, in the facts of the instant case.
As such, CP No.39 of 2015 is admitted for a principal sum of Rs.one crore together with interest thereon at the rate of six per cent per annum, to be calculated from the date of the statutory notice till actual payment.
If the company pays off the entire amount including interest, within a period of six weeks from date, the instant winding-up petition will remain permanently stayed. In default, the winding-up petition will automatically stand revived and will be advertised once in "The Statesman" and once in "Bartaman". In the advertisements to be published in the said two newspapers, it shall be indicated therein that the matter will appear before this Court under the same heading, three weeks from the date of the advertisements. Publication in the Official Gazette, however, will stand dispensed with.
CP No.39 of 2015 is, accordingly disposed of.
5Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
(BISWANATH SOMADDER, J.) nm./bp.