Harshit Promoters Pvt. Ltd. v. ICRI Research Pvt. Ltd.

1. This petition is filed under Sections 433(e) and 434(f) of the Companies Act, 1956 seeking winding up of the respondent Company.

2. The case of the petitioner is that on 16.06.2008 in the normal course of its business, the petitioner provided Inter-Corporate Deposit of Rs.75 lakhs to the respondents subject to interest @ 18% p.a. and repayable within a period of 90 days. To secure the interest of the petitioner, respondent Nos.[4] & 5 executed a promissory note for Rs.75 lakhs as well as handed over Post Dated Cheque (PDC) dated 13.09.2008 for the aforesaid amount of Rs.75 lakhs. The respondents also handed over a cheque dated 14.06.2008 for a sum of Rs.2,46,303/- towards the interest of the aforesaid amount for the said period after deducting TDS. Prior to the due date, on 10.09.2008 the respondents again approached the petitioner seeking extension of time for repayment of the aforesaid amount by two months. A fresh PDC dated 2018:DHC:6225 11.09.2008 for the principal amount i.e. Rs.75 lakhs was issued. Another cheque dated 11.09.2008 for Rs.1,76,203/- for further interest after deducting TDS was also issued. Again prior to the expiry of the said period, the respondents approached the petitioner requesting for extension of time for a period of two months. A fresh cheque for the principal amount of Rs.75 lakhs dated 11.01.2009 was issued. Similarly, a cheque dated 12.11.2008 towards the interest was also issued. The same exercise was repeated on 17.01.2009 and Six PDCs were issued towards the principal amount. Out of the six PDCs, the petitioner was able to encash the cheques amounting to Rs.30 lakhs only leaving a balance of Rs.45 lakhs which the respondents had requested that the said PDC be not presented. On 20.06.2009, again the respondents requested the petitioner for extension of time to pay the balance amount till 30.09.2009, and issued three PDCs dated 30.09.2009 towards the balance amount of Rs. 45 lakhs. Similarly, a cheque for Rs.1,60,785/- towards the interest was also issued as issued. Again on 02.02.2010 respondents asked for extension of three months for the repayment of the balance of Rs. 45 lakhs and issued PDCs dated 31.05.2010 towards repayment and interest payable for the balance amount. This process appears to have gone on subsequently when again the respondents handed over three PDCs on 30.09.2010 for Rs.45 lakhs which were returned unpaid. Thus, making the respondents liable to pay an amount of Rs. 45 lakhs along with interest.

3. Reliance is placed on a communication dated 08.08.2012 sent by the petitioner in response to which the respondents on 04.03.2013 despatched a Confirmation of Ledger Account showing the outstanding balance as per the books of accounts of the respondents for the financial years 2009-10, 2010- 11, 2011-12, 2012-13. The last ledger account indicated the balance amount payable to the petitioner is Rs.63,43,965/- as on 31.03.2013. As the respondents continued to default, the petitioner sent a legal notice on 14.08.2015. It is pleaded that despite receipt of the legal notice, the respondents did not respond to the legal notice or pay the dues of the petitioner.

4. The respondents have filed their reply. In the reply the respondents have denied that they despatched any balance confirmation to the petitioner. It has also been stated that the person who has allegedly signed the balance confirmation, namely, Ms.Shruti Gaur has nothing to do with the respondent Company. It has also been pleaded that the claim of the petitioner is barred by limitation. Reliance is placed on the judgment of the Division Bench of this court in Interactive Media and Communication Solution Pvt. Ltd. vs. Go Airlines Ltd. in CA No. 10/2013 dated 04.02.2013 to contend that the claim of the petition is barred by limitation.

5. I may note that today this matter was heard along with Co.Pet. No.861/2015, titled ‘Bon Lon Securities Ltd. v. ICRI Research Pvt. Ltd., (2013) 199 DLT 267.

6. The facts and issues which arise in Co.Pet. No.861/2015 are virtually identical as are in the present case. For the same reasons as stated by me in previous order in Co.Pet. No.861/2015, the present petition is also admitted.

7. Accordingly, I admit the present petition. The Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers ‘Statesman’ (English) and ‘Veer Arjun’ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing.

8. Petitioner shall deposit a sum Rs.75,000/- towards cost of the publication with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. The Official Liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him. At the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. It will also be open to the Official Liquidator to seek police help in the discharge of his duties, if he considers it appropriate to do so. The Official Liquidator to take all further steps that may be necessary in this regard to protect the premises and assets of the respondent-company. The OL will also seize all the bank accounts of the respondent.

9. However, in the interest of justice, I suspend the aforesaid order appointing the OL as the PL for a period of four weeks. In case within four weeks from today, the respondent were to pay to the petitioner the outstanding amount payable to the petitioner as reflected in their books of accounts, namely, of Rs.63,43,965/-, the aforesaid order shall stand revoked.

10. List on 08.02.2019.