TMI Blog2012 (4) TMI 302X X X X Extracts X X X X X X X X Extracts X X X X ..... cate of posting, after about four months of the order date would make it clear that the claim of the Company is mala fide and unbelieveable -it is to be held that the dues payable to the Firm is a crystallized form of debt and there is no impediment for this Court to pass appropriate orders for payment of this debt to the Firm - The amount of Rs. 24,75,128/- deposited in this Court be transferred to m the arbitration proceedings pending between the parties - CO. PETITION NO. 55 OF 2010, CO. APPLICATION NOS. 294 & 863 OF 2011 - - - Dated:- 24-1-2012 - A.S. PACHHAPURE, J. Naganand for the Petitioner. B.A. Belliappa and N.S. Satish Chandra for the Respondent. ORDER 1. The main petition is filed by M/s. Agni Aviation Consultants, a registered partnership Firm, (hereinafter called as 'the Firm') having its business at the address shown in the cause-title and is represented by its Partner Wg. Cdr. K.T. Sebastian (Retd.), under Section 433(e), (f) and Section 434 of the Companies Act, 1956 against M/s. Agni Aero Sports Adventure Academy Private Limited, (hereinafter called as 'the Company') incorporated under the provisions of the Companies Act. 1956 represented by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and had failed to fulfil with its customers the contractual obligations and was unable to fully recover from its financial losses. At this point of time, Capt. Arvind Sharma, Partner of the Firm and Director of the Company requested the Firm to advance monetary aid to the Company, to help the Company tide through its prolong period of financial loss, with the assurance that all advances would be returned to the Petitioner Firm. Hence, the Petitioner Firm began to advance substantial sums to the Company for about six years as and when required by the Company through account payee cheques drawn either in favour of the Company or in favour of its employees, towards the payment of their monthly salaries, at the request of the Company. So, as on 24.4.2008, the Company was due for a sum of Rs. 24,75,128/- (Rupees Twenty Four Lakhs Seventy Five Thousand One Hundred and Twenty Eight only) to the Firm. 8. The fact that the Company was indebted to the Firm to the tune of Rs. 24,75,128/- is said to have been mentioned in the statement of accounts of the Company and the latest balance sheet of the Company for the year 2009-010 reflects the dues payable to the Firm, The Firm has produced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for winding up. So also, it contends that Wg. Cdr. K.T. Sebastian (Retd.) has no authority to represent the dissolved Firm. It has denied the averments made in paras 2 to 8 of the petition as false and also the allegation that the Company was in severe financial problems in the year 2002-03 and claims that the Firm came into existence in the year 2003-04 and therefore, the question of the Firm helping the Company in the year 2002-03 would never arise. 14. It contends that the Firm has been a client of the Company for over seven years utilising various services from the Company like leasing of aircraft, servicing and maintenance of the aircraft, technical support, maintenance personnel etc., various transactions of monies have been entered into between the two entities. It denies that it was due for a sum of Rs. 24,75,128/- to the Firm and contends that the Company never admitted the alleged debt, even in its reply notice to the petitioner. 15. It contends that the Balance Sheet referred to shows the situation that as on 31-03-2009 for the financial year ending 2008-09, the date on which the amount is being shown as due is 24-04-2008 and two years have elapsed from the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... another two years and that the air craft was modified by the lessee at its own costs and the lease charge for the first year was fixed at Rs. 16 lakhs and for the next two years at Rs. 30 lakhs payable at the end of the lease period. 19. It is further averred that the Firm paid a sum of Rs. 16 lakhs as lease charges to the Company on 31.3.2008 and an entry has been made in the accounts of the Company. The Company is said to have handed over the aircrafts to the Firm in as is where condition to enable them to get the aircraft suitably modified for the purpose of cloud seeding. Further, the Firm is said 10 have continued the research and development on the other aircrafts in order to make it suitable for cloud seeding and it continued to possess the said craft till the end of the lease period and thereafter, handed it over to the Company and therefore, the Company claimed that the Firm itself is liable to pay the lease charges of Rs. 30 lakhs as on 31.3.2010. So also, it is averred that the Firm has been dissolved by dissolution notice and Wg. Cdr. K.T. Sebastian (Retd.) is bent upon harassing the Company inasmuch as the other partner of the Firm was the director of the Company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also the averments made in the application in C.A.No.294/2010 has further contended that the amount was deposited before this Court to show the bona fides of the Company that it is solvent and the application filed by the Firm lacks bona fides and further, that the dissolved Firm cannot make a claim for payment and hence, it has sought for the rejection of the application seeking permission to withdraw the amount in deposit. 24. I have heard the learned counsel for both the parties. The points that arise for the consideration of this Court are: ( i ) Whether it is proved that a sum of Rs. 24,75,128/- is a crystallized debt where the Company is due for the said sum to the petitioner Firm ? ( ii ) Whether CA 294/2011 filed by the Company deserves to be allowed ? ( iii ) Whether the Firm has to be permitted to withdraw the amount of deposit of Rs. 24,75,128/- made by the Company before this Court ? 25. It is an admitted fact that Capt. Arvind Sharma and Smt. Sapna Sharma are the only two Promoters/Directors of the Company, whereas so far as the Finn is concerned, Wg. Cdr. K.T. Sebastian (Retd.) and Capt. Arvind Sharma the Director of the Company are the two partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a specific averment that the Company has failed and neglected to pay the said dues and to support its contentions, the office copy of the notice, postal receipt and postal acknowledgment evidencing the service of notice on the Company at its registered office were produced as Annexures. 28. But the Company neither produced the notice nor any documents having sent the notice along with its objection statement, but in a single sentence took up a contention as under: "The respondent has never admitted the alleged debt and has in fact, specifically denied the debt in its reply notice to the petitioner." 29. Nowhere in its objection statement, it gave the particulars as to whether the reply has been sent through an Advocate or by the Company itself, the date and as to whether it is sent by Registered Post or under Certificate of Posting. But surprisingly, after four months of filing the objection statement along with an application to recall the order dated 24.2.2011, produced a copy of the Postal Certificate and the reply notice and except, stating that it is the fault on the part of the Company, no satisfactory explanation has been offered for non-production of the copy of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no explanation by the Company as to why it did not adopt the mode of serving the notice by registered post or through a lawyer. So also, there is no reasonable explanation about the absence of particulars of the notice in the objection statement. The production of the copy of the notice and the certificate of posting, after about four months of the order dated 24-02-2011, would make it clear that the claim of the Company is mala fide and unbelieveable. 32. At the time of admission, the counsel for the Company was also present. The learned Senior Counsel for the Firm had taken up a contention that an amount of Rs. 24,75,128/- is due from the Company and that a statutory notice was issued on 11-01-2010 and 28-01-2010 by the Firm calling upon the Company to pay the dues and despite the service of notice, the respondent has not replied the same. 33. The learned counsel also relied upon the decision of this Court reported in Baywest Power Energy (P.) Ltd. v. ZLPRO International Ltd. [2009] 148 Comp Cas 751 and another), wherein, this Court considering the fact that the Company was not able to pay its dues and though the statutory notice was issued, there was fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is said to have been deducted at source and paid to the credit of the Central Government as per the details given m the certificate. This certificate pertains to the credits made in between 01-04-2007 and 31-03-2008. A perusal of this document does not reveal that it pertains to the lease amount of Rs. 16 lakhs and it may be that the deduction of tax at source pertains to different other transactions and it cannot be accepted that it pertains to the alleged lease amount of Rs. 16 lakhs. 37. If once the lease agreement, the reply notice and the certificate of posting are excluded for the reasons stated supra , then the entry of Rs. 16 lakhs in the balance sheet do not find any support, as the relationship between Wg. Cdr. K.T. Sebastian (Retd.) and Capt. Arvind Sharma were strained and the possibility of making these hollow entries, so as to overcome the claim of the Firm cannot be overruled. 38. Though the learned counsel for the respondent relied upon the decision of the Apex Court reported in IBA Health (I) Ltd. v. Info-Drive Systems Sdn. Bhd. [2010] 104 SCL 367/8 ttaxmann.com 1 wherein, it has been held that where there is a bona fide dispute as to the liability a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting its partnership Firm after its dissolution, it can be said that there is no rule of law which prevents an action being brought by any party from recovering any amount from any partner, even though it may have some connection with the partnership concerned. 40. Though the learned counsel for the respondent has placed reliance on the decision of the Apex Court reported in The National Conduits (P.) Ltd. v. S.S. Arora AIR 1968 SC 279 wherein the Apex Court in the circumstances, when the petition is admitted, held that it is still open to the Company to move the Court that in the interest of justice or to prevent abuse of the process of the Court, the petition be not advertised and that the Court has the inherent powers to revoke the order of admission by suspending the publication of the petition in the newspaper. As already discussed, the order of admission made by this Court is a considered order and as admitted by the Company, it did not produce necessary documents and raise specific defence and for the fault committed by the Company, in the absence of the bona fides , the order admitting the petition cannot be recalled. 41. Furthermore, the Firm has filed an app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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