TMI Blog2015 (12) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... ether it could be claimed. Having advanced a substantial defence there is no question of a winding up order being passed. The defence is so substantial that is not even inclined to ask the company to provide security. This winding up applications are disposed of, by refusing to admit the same and relegating the petitioning creditor to a civil remedy as available to it. The period during which these winding up applications have been pending in this Court may be excluded to compute limitation under Section 14 of the Limitation Act, 1963. - C.P NO. 86 OF 2014, C.P.NO. 88 OF 2014, C.P. NO. 89 OF 2014, C.P. NO. 91 OF 2014 - - - Dated:- 16-10-2015 - I.P. MUKERJI, J. For The Petitioner : Mr. Samit Talukdar, Sr. Adv., Mr. Jishnu Saha, Sr. Adv., Mr. Hashnuhana Chakraborty, Adv., Mr. Debjyoti Manna, Adv., Mr. Aniruddh Poddar, Adv. For The Company : Mr. Abhrajit Mitra, Sr. Adv., Mr. Jishnu Chowdhury, Ms. Noelle Banerjee, Mr. Dipak Kr. Dey I.P. MUKERJI, J. These are winding up applications U/S 433, 434 and 439 under the Companies Act, 1956. The transactions which are the subject matter of these applications are very similar. All the above applications can be dispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast Global Ltd. These Companies are engaged in trading in iron and steel materials. One Sanjay Sureka controls these Companies. He is the Director of the respondent Company and of Concast Bengal Industries Ltd. He is also the Chairman of the group. All the members of the group are to be taken as one entity. The petitioning creditor is also a member of a group of industries, the other Companies being Ram Swarup Vyapar Ltd. and Ram Swarup Industries Ltd. They are controlled by the Jhunjhunwala family. The group is known as the Ram Swarup Group of Companies and is to be taken as one entity. From a table consisting three sheets of papers being Annexure- I at pages 529 to 541 of the Affidavit in Opposition, it is shown that Concast Bengal Industry Ltd. between 2nd January, 2009 and 9th March 2009 sold and delivered a total quantity of 12,273,656/- metric tonnes of iron of the value of ₹ 29,99,12,219/-, the gross value of which was ₹ 31,19,08,705/-. The corresponding invoices have also been annexed and marked as Annexure- J . Value added tax (VAT) returns are also annexed to the Affidavit in Opposition to show that VAT had been disclosed on the above sale. Mrs. Banerje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between the petitioning creditor and Concast Exim Ltd, learned counsel submitted. Learned Counsel also argued that since Concast Exim Ltd. and Concast Bengal Industries Ltd. were different juristic entities the petitioning creditor could maintain this winding application for non- payment of the price of goods sold and delivered them to Concast Exim Ltd. irrespective of whether Concast Exim Ltd. have received payment for the goods allegedly goods sold and delivered by them to the petitioning creditor. Furthermore, the adjustment the company was seeking was equitable set off. According to Mr. Saha the remedy of equitable set of lies when the transaction is the same. This relief cannot be availed of in respect of a transaction of 2009 on a claim made in a winding up petition in 2014 in respect of goods supplied by the petitioning creditor between July, 2011 and August, 2011. In the company petition C.P.No-89 of 2014, the transaction was between Concast Global and the petitioning creditor. The invoice value was ₹ 6,06,56,729.12/-. The total claim made in paragraph 21 of the petition was ₹ 10,20,35,779.20/-. In C.P. No. 91 of 2014, the transaction was between Dankuni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Corporate veil is removed to identify the person who controls the company wearing the corporate cloak. This is necessary to find out who is the person behind the actions of the company, the fault of the company and also to locate the real seat of the company. Lifting the corporate veil is necessary to detect fraud and crime. The doctrine of lifting of the corporate veil is being increasingly used in modern times to scrutinize corporate action. This concept was beautifully analysed by Mr. Justice S.C.Agrawal in New Horizons Ltd. and Another v. Union Of India and Others reported in (1995) 1 SCC 478, cited by Mr. Mitra for the Company. Mr. Justice Sanjib Banerjee in: In the Goods of: Kamal Kumar Mitra deceased And In the Matter of: Taxation Services Syndicate Ltd. reported in 2008(3) CHN 384 also cited by Mr. Mitra has remarked. Courts are more prone now than ever before to disregard the veil and go straight at the controlling mind without stopping to question the propriety or necessity of piercing the veil. We are told in the Affidavits in Opposition that Mr. Sanjay Surekha controls the Concast group of companies mentioned in that affidavit whereas the Jhunjhunwalas control ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicating that he has a fair or bona fide or reasonable defence although not a positively good defence the plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend. (c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend that is to say, although the affidavit does not positively and immediately make it clear that he had a defence, yet, shews such a state of facts as leads to the inference that at the trial of the action he may be able to establish a defence to the plaintiff s claim the plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in such a case the Court may in its discretion impose conditions as to the time or mode of trial but not as to payment into court or furnishing security. (d) If the defendant has no defence or the defence set up is illusory or sham or practically moonshine then ordinarily the plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend. (e) If the defendant has no defence or the defence is illusory or sham or practically moonshine then although ordinarily the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y making payment of the price. There is also strong evidence produced by the company to show that each of the companies of the Concast Group was a part of one entity and carried on business as one entity. Shipment of goods by the petitioning creditor in 2011 was sufficient to extinguish its liability for the goods that it received in 2009. The argument regarding equitable set off is premature, in my opinion. It has to be seen, upon scrutiny of the evidence at the trial whether the arrangement between the parties was such that the setting off took place at the time of the transaction or was it pleaded for the first time in the affidavits in opposition. That would determine whether the set off was legal or equitable and whether it could be claimed. Having advanced a substantial defence there is no question of a winding up order being passed. The defence is so substantial that I am not even inclined to ask the company to provide security. This winding up applications are disposed of, by refusing to admit the same and relegating the petitioning creditor to a civil remedy as available to it. The period during which these winding up applications have been pending in this Court m ..... X X X X Extracts X X X X X X X X Extracts X X X X
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