TMI Blog2017 (5) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... nding up proceedings under the Companies Act are more particularly meant for protecting the interest of the unsecured creditors of the company who are most affected lot when a company becomes commercially insolvent. The secured creditors of the company can always pursue their claim by keeping themselves out of the winding up proceedings. By the said judgment this court admitted the said Company Petition No.136 of 2014 and has also appointed the Official Liquidator as the provisional liquidator. At the request of the learned counsel for the respondent, this court has directed not to advertise the petition for a period of two weeks from the date of the said order. In my view the said judgment delivered by this court in Company Petition No.136 of 2014 applies to the facts of this case. I am respectfully bound by the said judgment. Thus Company Petition admitted. - COMPANY PETITION NO. 496, 497, 498 OF 2014 ALONGWITH CIVIL APPLICATION (L) NO. 890 OF 2015, 886 OF 2015, 885 OF 2015 - - - Dated:- 5-5-2017 - R.D. DHANUKA, J. Mr. Sharan Jagtiani, a/w. Mr. Nirman Sharma, a/w. Ms. Pinky Patel, i/b. M/s. Desai Diwanji for the Petitioner. Mr. Simil Purohit, a/w. Mr. Punit Damodar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ereafter through its advocates' letter issued a statutory notice dated 22nd October,2013 under sections 433 and 434 of the Companies Act, 1956 calling upon the respondent to pay a sum of ₹ 50,00,000/- with interest. The said notice was served at the registered office of the respondent. The respondent replied to the said notice in the month of October 2013 (Ex.D to the petition) and vaguely denied the claims. It was conveyed to the petitioner that the respondent was facing a temporary liquidity crunch and was therefore unable to make certain repayment obligations towards its lenders. The company was most likely to overcome its present liquidity crunch and meet its payment obligations in the near future. The respondent informed that the respondent had approached the Corporate Debt Restructuring (CDR) Cell of the Reserve Bank of India to restructure its debts and improve the overall financial help of the respondent. 8. In the said reply, the respondent alleged that Mr. Amitabh Parekh, Chairman and Managing Director of the respondent had issued cheques to various parties with an express understanding not to deposit the same without his consent and permission to which the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the said summary suit filed by M/s.Ashok Commercial Enterprises Anr. against the respondent herein. He submits that this court has rejected the plea raised by the respondent herein in the said order dated 24th February,2014 that the transaction between the parties was a money lending transaction and was hit by section 10 of the Bombay Money Lenders Act, 1946. The respondent herein had also contended in the said proceedings that since the said summary suit was filed for recovery of a loan amount given by the plaintiff which was an act of money lending without holding of a valid licence and thus the same was barred by the provisions of Bombay Money Lenders Act, 1946. 12. It is submitted that this court considered the said issue in detail in the said judgment and after adverting to the judgments of this court in cases of (1) M/s. Rushabh Precision Bearings Ltd. vs. M/s.Marine Container Services (India) Pvt. Ltd., 1993(3) Bom.C.R.760, (2) Bharati Surendra Khandhar vs. Deepak M.Shah in Summons for Judgment No.727 of 1998 decided on 8th October, 2001, (3) Jatin Jashwantrai Bhagat vs. Dayaram Waghji Thakar in Summons for Judgment No.309 of 2006 decided on 4th October,2006, (4)S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-payment of the amount secured by the cheque, the cheque can be deposited and would be honoured. This court held that the said defence can only be termed as bogus. 16. Insofar as the defence raised by the respondent that since the signatory of the cheque had expired before presentation of the cheque by the petitioner and thus there was no valid presentation for payment is concerned, similar defence was also raised by the respondent in the said summary suit. This court considered the said defence in the said order dated 24th February,2014 and rejected the said defence on the ground that the signatory of the cheque was the managing director of the defendant company and his death had nothing to do with the validity of the presentment of the cheques for payment. It is submitted by the learned counsel that by the said order dated 24th February,2014, the respondent herein was granted leave to defend the said summary suit on the condition of deposit of ₹ 67 crores in this court within a period of eight weeks from the date of the said order. 17. Learned counsel for the petitioner also invited my attention to the order passed by the Division Bench of this court on 20th Nove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, learned counsel appearing for the respondent placed reliance on the judgment of this court in case of M/s.Rushabh Precision Bearings Ltd. vs. M/s. Marine Container Services (India) Pvt. Ltd., 1993(3) Bom.C.R.760 and in particular paragraphs 1, 10 to 13 and submits that since the petitioner had not obtained money lending licence before grant of any loan to the respondent, the debt of the petitioner if any, was not legally recoverable and thus the petition for winding up under section 433(e) read with section 434(1)(a) of the Companies Act, 1956 itself would not be maintainable. He also invited my attention to the averments made in paragraph (7) of the company petition and would submit that it is the case of the petitioner himself that he had agreed to give loan of ₹ 50 lacs to the respondent. He submits that the company petition is not filed based on the dishonoured cheque but has been based on the loan advanced to the respondent. 22. Learned counsel also invited my attention to the demand notice issued by the petitioner on 22nd October,2013 in support of his submission that the said statutory notice was also based on the loan advanced by the petitioner to the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... virtue of section 2(g)(f). He submits that in this case also, it is not the case of the respondent that there were any continuity or repeated loan transactions between the petitioner and the respondent or that the petitioner was regularly carrying on business of money lending. He submits that in all three petitions, three separate individuals have granted loan to the respondent and thus in no circumstances, the provisions of Bombay Money Lenders Act could be attracted to the facts of this case. 25. Insofar as the issue raised by the respondent across the bar that the statutory notice or the papers and proceedings of the company petition was not served at the registered office of the respondent is concerned, learned counsel appearing for the petitioner invited my attention to the averments made in paragraphs 10 to 14 of the company petition. He submits that no such plea is raised by the respondent in the affidavit in reply. It is submitted that even in the reply to the statutory notice dated 22nd October,2013 issued by the petitioner, the respondent never raised an issue about service of the statutory notice at the registered office address. The petitioner had issued two statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warded by respondent herein to the petitioner therein after the loans were advanced makes no difference. The amounts were advanced by the petitioner therein to the respondent herein and the cheque and bill of exchange were issued by the respondent herein to the petitioner therein as a part of one composite agreement and was entered into at the same time. In this case, the petitioner had given loan on 19th March,2012 by a cheque. There was no writing executed between the parties while the petitioner had given loan to the respondent. On 16th December,2012, the respondent acknowledged the receipt of the said loan only at the rate of 12% per annum and assured to make repayment of the loan and issued a cheque of ₹ 50 lacs dated 16th March,2013 towards repayment. The said cheque was admittedly dishonoured. 29. In my view, the issue raised by the respondent is thus no longer res integra and is already concluded in the said order dated 24th February,2014 passed by this court to which the respondent herein was a party and by an order dated 20th November,2014 passed by the Division Bench of this court in the appeal filed by the respondent herein which is dismissed. The principles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no valid presentment of the cheque in view of the signatory of the said cheque having expired before such presentment are concerned, similar pleas are already rejected by this court in the said order dated 24th February,2014 passed by the learned Single Judge and by the order dated 20th November,2014 passed by the Division Bench of this court to which the respondent herein was a party. 33. Insofar as the plea of the respondent that there was a CDR scheme is concerned, it is not in dispute that the said CDR scheme has already failed. 34. Insofar as submission of the learned counsel for the respondent that the statutory notice or the papers and proceedings were not served at the registered office address of the respondent is concerned, a perusal of the record indicates that no such plea has raised by the respondent in the affidavit in reply. Be that as it may, the fact remains that the petitioner has issued two statutory notices, one at the registered office address of the respondent and one at the administrative office address of the respondent. The respondent has already responded to the one of such statutory notice. Even in the said reply, the respondent did not raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d reliance on the judgment delivered on 19th March,2010 in case of Sublime Agro Limited vs. Indage Vinters Limited in Company Petition No.960 of 2009 and has held that CDR scheme is admittedly a voluntary scheme and not binding on the unsecured creditors of the company. It is held that the provisions pertaining to winding up proceedings under the Companies Act are more particularly meant for protecting the interest of the unsecured creditors of the company who are most affected lot when a company becomes commercially insolvent. The secured creditors of the company can always pursue their claim by keeping themselves out of the winding up proceedings. By the said judgment this court admitted the said Company Petition No.136 of 2014 and has also appointed the Official Liquidator as the provisional liquidator. At the request of the learned counsel for the respondent, this court has directed not to advertise the petition for a period of two weeks from the date of the said order. In my view the said judgment delivered by this court in Company Petition No.136 of 2014 applies to the facts of this case. I am respectfully bound by the said judgment. 37. In my prima facie view, the res ..... X X X X Extracts X X X X X X X X Extracts X X X X
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