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2016 (7) TMI 1191 - HC - Companies LawWinding up petition - Respondent Company is unable to pay debts - Held that:- As carefully gone through the deal confirmation annexed at Exh.'K' to the Petition as well as Exh.'F' to the affidavit in rejoinder dated 24 March, 2014. Both the aforesaid documents are one and the same deal confirmation and are identical in its terms. The only difference between the two is that the duplicate of this deal confirmation has been signed by the Respondent – Company (through its authorised signatories) whereas the stamped deal confirmation is unsigned by the Respondent Company. Reading these two documents together, find absolutely no merit in the submission of Mr Cama that there is any variance between the two documents. In any event, this defence is taken for the first time in this Company Petition and was never raised by the Respondent Company at the time when it disputed its liability on the expiry of the relevant options under the Deal Confirmation dated 26 June, 2008. Therefore find that this defence is neither in good faith nor bonafide which would persuade me to dismiss this Company Petition on this ground. If in fact, it was the case of the Respondent Company that it was not a signatory to the Deal Confirmation which in turn did not give rise to any liability, such a fundamental defence would have been taken up by the Respondent Company at the very first instance and would not find place for the first time only in the affidavit in reply filed to contest the contentions raised by the petitioner Bank. This being the position, unhesitatingly reject this argument. For all the aforesaid reasons, find that there is no bonafide defence that has been raised by the Respondent Company. The liability incurred by the Respondent Company to the Petitioner – Bank is on the basis of a written contract (the Deal Confirmation) entered into between them which the Respondent Company has, without sufficient cause, failed to honour. The liabilities are far in excess of an amount of ₹ 500/- as contemplated under section 434(1)(a) of the Companies Act, 1956. This, to my mind, would entitle the Petitioner to seek an order of admission of this Company Petition. In these circumstances, the following order is passed :- (i) The Company Petition is admitted and made returnable on 3rd October, 2016. (ii) The admission of this Company Petition shall be advertised in two local newspapers viz. (i) Free Press Journal (in English) and (ii) Navshaktti (in Marathi) as also in (iii) Maharashttra Governmentt Gazetttte. Any delay in publication of the advertisement in the Maharashtra Government Gazette and any resultant inadequacy of notice shall not invalidate such advertisement or notice and shall not constitute non-compliance with this direction or with the Companies (Court) Rules, 1959. (iii) The Petitioner shall, on or before 27th August, 2016 deposit a sum of ₹ 10,000/- towards publication charges with the Prothonotary and Sr. Master of this Court, under intimation to the Company Registrar, failing which the Petition shall stand dismissed for non-prosecution without further reference to the Court. After the advertisements are issued, the balance, if any, shall be refunded to the Petitioner.
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