2025 (6) TMI 1674 - HC - Companies Law

Winding up of the Appellant-Company under Section 433(e) of the Indian Companies Act 1956 - obligation to refund the security deposit - uncrystallized debt - bonafideness of defences raised by appellant-company - HELD THAT - At the outset there is no dispute whatsoever about the refundable security deposit of Rs.50 lakhs. At some stage therefore this deposit had to be returned by the Appellant- Company particularly after its manufacturing business declined and there were difficulties in making supplies. There are findings which were not even attacked in this appeal about the contract being terminated. The security deposit had therefore to be returned. The agreement as recorded by the learned Company Judge had already been terminated. The writings mainly referred to the modalities for refund of the security deposit amount with interest. Even the offer to supply goods was not quite bona fide. There is no material on record to indicate that the Appellant-Company was indeed able to supply the goods - All the confusing contradictory defenses which were far from bona fide have been considered in detail by the learned Company Judge. The learned Company Judge concluded that these defenses lacked merit and based upon the same the Winding Up Petition could not be resisted. Upon an independent evaluation it is satisfied that the defenses were neither plausible nor bona fide. There is no reason to interfere with or take any different view in the matter. The learned Company Judge has also taken cognizance of the fact that the financial institutions had filed proceedings against the Appellant-Company for recovery of crores of rupees. The Receiver had also been appointed and no activities of production were carried out by the Appellant- Company for the last over five years. The learned Company Judge also took cognizance of the circumstance that the Appellant-Company was offering to pay the amounts during the pendency of the winding up proceedings but no payment was being made. These are all relevant considerations. There was nothing shown to contradict these findings except for trying to list the financial misfortunes suffered by the Appellant company. Conclusion - The Appellant-Company is liable to repay the security deposit along with interest no bona fide dispute existed to resist winding up and the winding up order rightly passed under Section 433(e) of the Indian Companies Act 1956. Thus no case is made out to interfere with the impugned judgment and order winding up the Appellant- Company. There is no error either in the findings recorded or in the approach of the learned Company Judge - appeal dismissed.

Summary

The core legal questions considered by the Court in this appeal were:

1. Whether the Appellant-Company was liable to repay the security deposit of Rs. 50 lakhs along with agreed interest to the Creditor, given the terms and conditions recorded in the minutes of meetings dated 04 January 1992 and 03 May 1992.

2. Whether the Appellant-Company had raised a bona fide dispute regarding the liability to repay the security deposit and interest, sufficient to resist the winding up petition under Section 433(e) of the Indian Companies Act, 1956.

3. Whether the defenses raised by the Appellant-Company, including claims about non-fulfillment of mutual obligations by the Creditor and alleged inaccuracies in the recorded minutes, were tenable and substantiated.

4. Whether the winding up order was justified in light of the Appellant-Company's financial condition and conduct during the proceedings.

Issue 1: Liability to repay the security deposit and interest

The relevant legal framework involved the contractual obligations arising from the agreement and subsequent minutes of meetings between the parties, which constituted written acknowledgments and undertakings to repay the security deposit with interest. The Indian Companies Act, 1956, particularly Section 433(e), empowers winding up where a company is unable to pay its debts.

The Court examined the minutes dated 04 January 1992 and 03 May 1992, which clearly acknowledged the receipt of the Rs. 50 lakhs security deposit and the Appellant-Company's liability to refund the amount with interest at 24% per annum due to delays. The Court noted that the Appellant-Company had failed to return the deposit despite these admissions and undertakings.

The Court rejected the Appellant-Company's argument that the debt was not crystallized or unconditional. It held that the writings constituted clear acknowledgment of debt and unqualified promises to pay, which were binding. The Court found no merit in the claim that the liability was contingent upon the Creditor fulfilling certain conditions, as these were not substantiated.

The Court also found that the contract had been terminated and thus the security deposit was due and payable. The Appellant-Company's failure to pay despite statutory notices served by the Creditor further evidenced the liability.

Issue 2: Bona fide dispute to resist winding up

Under the legal principles governing winding up petitions, a bona fide dispute on the existence or amount of debt can preclude winding up. The Court scrutinized the defenses raised by the Appellant-Company, including allegations that the minutes did not accurately reflect the meetings and that the Creditor failed to comply with mutual obligations.

The Court found these defenses to be vague, contradictory, and unsubstantiated. The Appellant-Company's claim of willingness to supply goods as an offset was unsupported by evidence and described as "bare words" by the learned Company Judge. The Court also noted the belated and inconsistent attempts to challenge the minutes and the production of unsigned and apparently fabricated minutes dated 16 and 17 July 1992, which further undermined the bona fides of the defense.

Consequently, the Court concluded that the dispute was not bona fide but rather an attempt to avoid payment and delay proceedings.

Issue 3: Evaluation of defenses and conduct of the Appellant-Company

The Court considered the entire record, including the Appellant-Company's financial difficulties, offers to pay which were later retracted, and the history of defaults. It noted that financial institutions had initiated recovery proceedings and a Receiver had been appointed, indicating insolvency.

The Court emphasized that the Appellant-Company's defense lacked credibility, especially given the fabrication of documents and inconsistent assertions. The Court rejected the contention that the winding up order would harm the chances of revival, observing that the company had ceased production activities for over five years and no payments were forthcoming despite offers.

Issue 4: Justification for winding up order

The Court found that the Appellant-Company was unable to pay its debts, as evidenced by admitted dues, statutory notices, and failure to make payments. The winding up order under Section 433(e) was therefore appropriate and justified.

The Court found no error in the learned Company Judge's findings or approach and declined to interfere with the winding up order.

Significant holdings and core principles established:

"There is no dispute whatsoever about the refundable security deposit of Rs.50 lakhs. At some stage, therefore, this deposit had to be returned by the Appellant- Company particularly after its manufacturing business declined and there were difficulties in making supplies."

"The minutes of the two meetings acknowledged not only the receipt of the security deposit but also the liability to pay. Initially, the security deposit was not liable to bear any interest. However, considering the delay and the accommodation offered, the Appellant-Company agreed to refund this security deposit with interest at the rate of 24% per annum."

"The entire attempt is to avoid payments by raising vague and contradictory defense which is not even prima facie made good."

"Raising false defenses by fabricating minutes, detracts from the bona fide of the defense."

"Even upon independent evaluation of the contentions raised before the Company Judge or raised in this Appeal, we are unable to accept the Appellant's version of either there being no liability to pay or that the dispute about payment was bona fide."

"The liability to pay is very clear and backed by the documentary evidence, admissions and acknowledgments."

The Court's final determinations were that the Appellant-Company was liable to repay the security deposit along with interest, that no bona fide dispute existed to resist winding up, and that the winding up order was rightly passed under Section 433(e) of the Indian Companies Act, 1956. The appeal was dismissed with no costs.