KOHLBROS COMMUNICATION PVT. LTD. vs SANDEEP TRADEX PVT. LTD

In this application, the petitioner has prayed for winding up of the respondent company.

The petitioner claims that the company is controlled by its principal director, Naresh Narayan Kohli and his son Varun Roshan Kohli is the sole

proprietor of M/s. Kohl Bro. International (hereinafter referred to as “the said firmâ€). The company and the firm have been in the business, inter

alia, of importing walkie talkies (hereinafter referred to as “the said goodsâ€) and accessories and supplying the same to various government

departments and private sector companies. As per the respective agreements between the petitioner, company and the firm, the petitioner imported

the said goods by making remittances to the overseas suppliers and sold the said goods to the company and the firm, respectively on high sea sales

basis. The company and the firm had to pay the petitioner, the price of the said goods sold to them together with service charges. On account of the

goods sold to the company Rs. 17, 59,128/- remained due and outstanding by the company to the petitioner as on March 31, 2019. So far as the said

goods sold to the said firm Rs. 6, 15,167/remained due and owing by it to the petitioner as on March 31, 2014. The various cheques issued by the

company to the petitioner for Rs. 13,50,731/were dishonoured upon presentation for encashment and the petitioner instituted proceedings against the

company under Section 138 of the Negotiable Instruments Act, 1881 (in short “the N.I. Actâ€). The petitioner also issued a notice dated April 16,

2014 to the company under Section 434 of the Companies Act, 1956 (in short “the Act of 1956â€). Two cheques for the aggregate amount of Rs.

6, 15,167/- issued by the said firm to the petitioner were also dishonoured upon presentation for encashment. The petitioner also filed proceedings

against the proprietor of the said firm under Section 138 of the N.I. Act and also filed a police complaint in Hare Street Police Station Case No. 269

dated April 25, 2014 against the persons in control of the company and the proprietor of the said firm. At the instance of the company and the said

firm on September 25, 2014 a memorandum of settlement (hereinafter referred to as “the said memorandum of settlementâ€) was entered into

between the petitioner, the company, the firm and the principal director of the company namely, Naresh Narayan Kohli providing, inter alia, as follows:

a) the company and the firm admitted their dues to the petitioner as on March 31, 2014 to be Rs. 17,59,128/- and Rs.6,15,167/-, respectively.

b) subject to the payment of Rs. 20 lakhs by the company to the petitioner within June 15, 2015 as per the agreed instalments the petitioner agreed to

accept the outstanding dues of the company and the firm as on March 31, 2014 at Rs. 15,00,000/- and Rs. 5,00,000/-, respectively.

c) the company would pay the aggregate amount of Rs. 20 lacs to the petitioner on behalf of itself and the firm in the following manner:

i) the company would pay Rs. 1.50 lakhs at the time of execution of the agreement; ii) from the month of October, 2014 and upto the month of May,

2015 company would pay the monthly instalments of Rs. 1, 00,000/-, each and the last instalment of Rs. 10.50 lacs would be paid within June 15, 2015.

d) The petitioner would agree to the adjournment of the criminal proceedings initiated against the company, the directors and the proprietor of the firm

under Section 138 of the N.I. Act, keep the criminal proceedings initiated against the directors of the company and the proprietor of the firm in

abeyance and defer the winding up application against the company.

e) In default of payment any of above instalments by the company the entire amount of Rs. 17,59,128/- and Rs. 6,15,167/- aggregating to Rs.

23,75,295/- would forthwith become due and payable by the company to the petitioner with panel charges on the amount then remaining due at the

rate of 2% per month compoundable on monthly basis and the petitioner would also be entitled to proceed with the pending proceedings under Section

138 of the N.I. Act and the Hare Street P.S. Case No. 269 dated April 25, 2014 and to file winding up proceeding against the company. The petitioner

has disclosed a copy of the said memorandum of settlement in the application.

f) At the time of execution of the said memorandum of settlement dated by a demand draft dated September 25, 2014 the company paid Rs. 1.50

lakhs to the petitioner and issued 9 postdatedcheques of various dated in favour of the petitioner.

The first postdatedcheque dated October 15, 2014 issued by the company in favour of the petitioner for Rs. 1 lakh was honoured upon presentation by

the petitioner. However, the postdatedcheques dated November 15, 2014, December 15, 2014 for Rs. 1 lakh each issued by the company were

dishonoured due to insufficient funds in the bank account of the company. Subsequently, on November 20, 2014 and December 17, 2014 the company

paid the defaulted monthly instalments for the month of October, 2014 and November, 2014 of Rs. 1 lakh each to the petitioner in its bank account

through NEFT. According to the petitioner, this is evident from its letters dated April 20, 2014 and April 20, 2015 issued by itself to the company, the

copies whereof have been disclosed. The postdatedcheques dated January 15, 2015, February 15, 2015 and March 15, 2015 of Rs. 1 lakh each issued

by the company in favour of the petitioner on account of monthly instalments for the months of January, 2015, February, 2015 and March, 2015 were

honoured by the banker of the company. So far as the monthly instalments for the month of April, 2015 is concerned, after the cheque dated April 20,

2015 issued by the company was dishonoured and in between April 23, 2015 and May 23, 2015 the company deposited Rs. 1 lakh in the bank account

of the petitioner through NEFT. However, the postdatedcheques Rs. 1 lakh and Rs. 10.50 lakhs issued by the company to the petitioner on account of

monthly instalments for the month of May, 2015 and the last instalment payable in the month of June, 2015, respectively were dishonoured due to

insufficient fund in the bank account of the company. The copies of the said dishonoured cheques along with the copy of the dishonour note issued by

the banker of the company have also been disclosed in the application. In the meantime, by a letter dated May 06, 2015 the company alleged that Rs.

61,176.26/- is payable to itself by the petitioner. By a letter dated May 07, 2015 addressed to the company the petitioner denied any liability to make

any payment to the company. According to the petitioner, in view of the dishonour of the said two cheques dated May 15, 2015 and June 15, 2015

issued by the company, as per clause 9 of the said memorandum of settlement, the concession granted by the petitioner to the company for Rs.

3,74,295/- stood revoked and after giving credit Rs. 8.50 lakhs paid by the company, a sum of Rs. 15,24,295/- (being the aggregate of Rs. 3,74,295/-,

Rs. 10,50,000/- and Rs. 1,00,000/-) together with interest, at the rate of 2% per month compoundable on monthly basis is payable by the company to

the petitioner. By a notice dated July 03, 2015 issued under Section 434 of the

Act of 1956, the petitioner through its advocate called upon the company to pay Rs. 15, 24,295/- with the rate of interest as agreed in the said

memorandum of settlement. The company received the said notice dated July 03, 2015 but did not reply to the same, nor did it make any payment to

the petitioner. According to the petitioner, the company has no defence to claim of the petitioner for Rs. 15, 24,295/- together with the agreed rate of

interest but it is unable to pay the dues of the petitioner. Thus, the petitioner has prayed for winding up of the company.

The company has contested this application and it filed its affidavit in opposition denying the material allegations made against itself in the petition. It is

the case of the company that since the petitioner has also sought to realise its dues payable by the firm, this application under Section 433(e) of the

Act of 1956 is not maintainable. It is further alleged that since the petitioner had already initiated the proceedings under Section 138 of the N.I. Act

against the company and also instituted a police complaint, being Hare Street Case No. 269 dated April 25, 2014 against one of the directors of the

company, the present winding up application should outrightly be dismissed as the company ought not to be subjected to double jeopardy. According to

the company, after the petitioner lodged the aforementioned police complaint of the Hare Street Police Station, the

Police Authorities compelled its director to settle the matter with the petitioner failing the deponent of the affidavit-in-opposition, as the director of the

company and his son, the proprietor of the said firm and his son Varun were threatened with immediate arrest. Faced with the imminent arrest and

under coercion by the police force at the behest of the petitioner, the company had no option but to sign the said memorandum of settlement. It is

further alleged by the company that on account of the dealings and transactions it had with the petitioner, the company owed to the petitioner only a

sum of Rs. 8.50 lakhs which was duly paid to the petitioner after execution of the said memorandum of settlement. Since the company owed Rs. 8.50

lakhs to the petitioner, it chose to first make payment of the said sum of Rs. 8.50 lakhs to the petitioner before filing of a civil suit for a declaration that

the said memorandum of settlement was obtained by the petitioner by committing fraud, coercion and undue influence upon itself and for a declaration

that the memorandum of settlement is illegal, invalid and not binding upon itself. After payment of the said sum of Rs. 8.50 lakhs to the petitioner the

company has been advised to file a civil suit claiming the aforementioned reliefs in respect of the said memorandum of settlement. In paragraph 3(W)

of its affidavit the company alleged that out of the balance amount of Rs. 11,81,379/- in between September 25, 2014 and April 23, 2015, it paid Rs.

8.50 lakhs to the petitioner as stated in paragraph 13 of the petition and it further paid the balance amount of Rs. 3,31,379/- to the petitioner in cash.

The company further alleged that without the details of the High Seas Sale Agreements between the petitioner and the company and those between

the petitioner and the firm and the total value of transaction between the petitioner on the one hand and the company and the firm, respectively on the

other hand or the particulars of total payment made by the company and the firm to the petitioner, the present winding up application filed by the

petitioner on the basis of the memorandum of settlement dated September 25, 2014 is not maintainable.

In its affidavit-in-reply the petitioner denied the allegations of the company in its affidavit-in-opposition and it reiterated the case made out in the

petition.

Mr. Amitesh Banerjee, learned senior advocate appearing for the petitioner submitted that the affidavit-in-opposition filed on behalf of the company

has been affirmed by Mr. Naresh Narayan Kohli who is not only the principal director of the company but the father of the proprietor of the firm. In

the affidavit-inopposition filed on behalf of the company the deponent could not dispute that his son Varun Kohli is the proprietor firm and the

petitioner sold the said goods to the company and the said proprietor of the firm on High Seas Sales Basis. He submitted that in the instant case

receipt of the statutory notice dated July 03, 2015 issued by the petitioner company is not in dispute but the company could not explain as to why it did

not reply to the said notice. It was argued for the petitioner that the deponent of the affidavit in opposition filed by the company has not only signed the

said memorandum of settlement on behalf of the company, he is also a party to the said agreement as the guarantor for payment of Rs. 20 lakhs by

the company to the petitioner. According to Mr. Banerjee, the company executed the said memorandum of settlement and undertook an obligation to

pay not only the dues of itself but also that of the firm to the petitioner and in terms of the said memorandum of settlement the company also paid Rs.

1.50 lakhs to the petitioner by a demand draft dated September 25, 2014 and issued nine postdated cheques. Further, the company honoured the

postdated cheques dated October 15, 2014, January 15, 2015, February 15, 2015 and March 15, 2015 of Rs. 1 lakh each. By referring to the said

letters dated November 20, 2014 and April 20, 2015 issued by the petitioner to the company, it was submitted that when the postdated cheques dated

November 15, 2014 and December 15, 2014 issued by the company were dishonoured on presentation, the company in discharge of its obligations

under the said memorandum of settlement by making a deposit of Rs. 1 lakh each on November 20, 2014 and December 20, 2014 in the bank account

of the petitioner through NEFT. Similarly, when the postdated cheque dated April 15, 2015 of Rs. 1 lakh issued by the company was dishonoured on

presentation the company once again, in discharge of its obligations under the said memorandum of settlement dated September 25, 2014 in between

April 23, 2015 and May 23, 2015 deposited a sum of Rs. 1 lakh in the bank account of the petitioner through NEFT.

In this regard, the learned counsel for the petitioner referred to the statutory notice dated July 03, 2015 issued by the petitioner to the company.

According to the petitioner, in the statutory notice dated July 03, 2015 the petitioner stated all the above facts and claimed the payment of the principal

amount of Rs. 15,25,295/- together with interest and in spite of receipt of the same, the company chose not to reply to the said notice disputing any

statement made therein.

In these facts, according to the petitioner, the allegation made by the company that the said memorandum of settlement is vitiated by any fraud or

coercion or undue influence or that the said memorandum of understanding is not binding upon the company or that the latter paid Rs. 8.5 lakhs to the

petitioner independent of the said memorandum of settlement or that after payment of Rs. 8.5 lakhs the company owes no money to the petitioner are

all afterthoughts and devoid of any merit.

Mr. Joy Saha, learned senior advocate on behalf of the company reiterated the aforementioned allegations made by the latter in its affidavit-in-

opposition, except that Rs. 3,31,379/- was paid by the company to the petitioner in cash. Mr. Saha submitted that the company has nothing to prove the

cash payment of the said amount of Rs. 3, 31,379/- to the petitioner. He, however, contended that in fact the petitioner was entitled to receive only Rs.

8.50 lakhs from the company and relying upon the statement of Imports disclosed by the company as Annexure-“D†to its affidavit-in-opposition it

was asked that the entire amount of Rs. 8.50 lakhs was received by the petitioner from the company. It was strongly contended that on the grounds

mentioned by the company in its affidavit, the said memorandum of settlement dated September 25, 2014 is not binding upon the company and the

present application for winding up of the company should be rejected.

The petitioner has founded this application for winding up of the company on the memorandum of settlement dated September 25, 2014 executed by

itself, the company and the firm. The deponent of the affidavit-in-opposition signed the memorandum of settlement as the director of the company. He

is also a party to the memorandum of settlement as the guarantor for due payment of the sum of Rs. 20, 00,000/- by the company to the petitioner.

According to the petitioner, in the said memorandum of settlement dated September 25, 2014 the company, as well as the proprietorship firm in clear

terms admitted their respective liability to pay Rs. 17, 59,128/- and Rs. 6,15,167/- to the petitioner as on March 31, 2014. The said memorandum of

settlement also recorded the offer of the company and the firm to pay Rs. 15,00,000/- and Rs. 5,00,000/-, respectively to the petitioner as full and final

settlement of their respective dues provided the said amounts are paid within June 15, 2015 by way of monthly instalments. As per the memorandum

of settlement dated September 25, 2014 the company also agreed to pay the entire settle amount to Rs. 15,00,000/- and Rs. 5,00,000/- aggregating to

Rs. 20,00,000/- on behalf of itself and the said firm which was acceptable to the petitioner. Clause 9 of the memorandum of settlement dated

September 25, 2014 provided that in default of payment of any of the instalments by the company the entire dues of the petitioner for Rs. 17,59,128/-

and Rs. 6,15,167/- aggregating to Rs. 23,74,295/- shall become due and payable by the company to the petitioner and that the company and the

guarantor shall also liable to pay panel charges on the amount then remaining outstanding at the rate of 2% per month compoundable on monthly basis

and the petitioner shall be entitled to proceed with the proceeding under Section 138 of the Negotiable Instruments Act and the

Hare Street P.S. Case No. 269 dated April 26, 2014 and to file the proceeding for winding up of the company. Indisputably, as recorded in the said

memorandum of settlement by a demand draft, bearing no. 877508 dated September 25, 2014 drawn on State Bank of India, the company paid Rs.

1.50 lakhs to the petitioner.

As recorded in the schedule to the said memorandum of settlement dated September 25, 2014 the company also issued eight postdated cheques,

bearing nos. 892216, 892217, 892218, 892219,892220, 892221, 892222, 892223 dated October 15, 2014, November 15, 2014, December 15, 2014,

January 15, 2015, February 15, 2015, March 15, 2015, April 15, 2015 and May 15, 2015 drawn on State of Bank of India of Rs. 1,00,000/- each to

the petitioner. The company also issued a further postdated cheque bearing no. 892224 dated June 15, 2015 drawn on State Bank of India of Rs.

10.50, 000/- to the petitioner. From the letters dated November 20, 2014 and April 20, 2015 issued by the petitioner, which were received by the

company but were not replied to, it is evident that the first postdated cheque dated October 15, 2014 issued by the company was honoured upon

presentation but the postdated cheques dated November 15, 2014 and December 15, 2015 issued by the company were dishonoured upon presentation

for encashment and on November 20, 2014 and December 17, 2014 the company deposited Rs. 1,00,000/- in the bank account of the petitioner

through RTGS on account of dihonour of each of the said cheques dated November 15, 2015 and December 20, 2015. The postdated cheques dated

January 15, 2015, February 15, 2015 and March 15, 2015 of Rs. 1, 00,000/each issued by the company in favour of the petitioner were honoured on

presentation. Once again the cheque dated April 15, 2015 issued by the company in favour of the petitioner was dishonored on presentation. The

company, however, on diverse dates between April 15, 2015 and May 23, 2015 deposited the amount of the said dishonoured cheque dated April 15,

2015, that is, Rs. 1,00,000/- in the bank account of the petitioner through NEFT.  So far as the balance postdated cheques dated May 15, 2015 and

June 15, 2015 for Rs. 1,00,000/- and Rs. 10,50,000/- both the said cheques were dishonoured on presentation, by the issuing bank on the ground of

insufficiency of funds in the account of the company. In the said letters dated April 20, 2015 and May 04, 2015 the petitioner specifically asserted the

issuance of the aforementioned postdated cheques by the company in discharge of its obligation under the memorandum of settlement, encashment of

some of them, as well as dishonor of the said cheques dated November 15, 2014, December 15, 2014 and April 15, 2015 on presentation and payment

of the amount corresponding to the amount of each of the said dishonoured cheques in its account by the company through RTGS. The company did

not reply to any of the said letters of the petitioner disputing the contents thereof. Even in the statutory notice dated July 03, 2015 which was duly

received by the company the petitioner asserted the issuance of the said 9 postdated cheques by the company in terms of its obligation under the

memorandum of settlement as well as the dishonour of the postdated cheques dated May 15, 2015 and June 15, 2015 resulting in failure of the

company to fulfil its obligation to pay Rs. 20, 00,000/- under the memorandum of settlement within June 15, 2015. Once again the company did not

reply to the said statutory notice disputing the contents thereof. In the present case, the company did not issue any correspondence to the petitioner

disputing either the payment of Rs. 1.50 lakhs by the demand draft dated September 25, 2014 or the issuance of the 9 postdated cheques in discharge

of its obligation under the said memorandum of settlement. There is absence of any contemporaneous document from the side of the company alleging

that it did not issue the 9 postdated cheques to the petitioner in terms of the said memorandum of settlement or that it had paid Rs. 8.50 lakhs

independent of the said memorandum of understanding. Even in the affidavit in opposition filed by the company there is no pleading that it did not pay

Rs. 8.50 lakhs to the petitioner under the said memorandum of settlement dated September 25, 2014. Until filing of the affidavit-in-opposition in this

application the company never alleged that the said memorandum of settlement dated September 25, 2014 is not binding upon itself. Further, when the

company asserts that the said memorandum of settlement dated September 25, 2014 is vitiated by fraud, coercion and undue influence committed upon

itself by the petitioner it is the obligation of the company to file a suit before the competent Civil Court against the petitioner challenging the validity of

the said memorandum of settlement and obtaining a decree for cancellation thereof. However, till this date the company has not filed any suit or

proceeding, against the petitioner, before the competent Civil Court to obtain a decree for cancellation of the said memorandum of settlement.

Considering all these facts, the inescapable conclusion to be arrived in this case is that the company issued the said 9 postdated cheques in favour of

the petitioner and paid Rs. 8.50 lakhs to the petitioner in discharge of its obligation under the said memorandum of settlement and thereafter it failed to

pay the balance sum of Rs. 11.50 lakhs to the petitioner. In its affidavit the company admitted its liability to pay the balance sum of Rs. 11,81,379/-

to the petitioner and claimed that it paid Rs. 8.50 lakhs to the petitioner by cheque/RTGS and it paid Rs. 3,31,379 to the petitioner in cash. Such

averment by the company in the affidavit was verified by the deponent, the Director of the company, to be true to his knowledge. During the course of

the oral argument the learned counsel for the company submitted that inasmuch as the company has nothing to prove such cash payment, it is not

pressing the same as it defence to the claim of the petitioner. In the facts of the present case, I do not find any merit in the contention raised by the

company that in order to recover its dues the petitioner has to file a civil suit against the company for enforcement of its rights under the said

memorandum of settlement. The defences sought to be put up by the company against the claim of the petitioner on the basis of the saidÂ

memorandum of settlement dated September 25,2014 and as claimed in the notice under section 434 of the Act of 1956 do not appear to be bona fide

or of any substance.

As held by the Supreme Court in the case of Madhusudan Gordhandas and Co.-vs.-Madhu Wollen Industries Pvt. Ltd. reported in AIR 1971 SC 2600,

the Court can refuse a petition for winding up of the company when the claim of the petitioner is bona fide disputed by the company. In other words,

in the first place when the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and

thirdly, the company adduces prima facie proof of the facts on which the defence depends, the Court should refuse to admit the winding up application

against the company.

Considering the facts of the present case as discussed above, I am unable to convince myself to hold that the company has been able to either make

out any bona fide defence to the claim of the petitioner or that it has adduced any prima facie proof of facts on which it based its defence in the

affidavit-inopposition to the claim of the petitioner for Rs. 15, 24,295.00. Lastly, when the company has all along made payments to the petitioner in

terms of the said memorandum of settlement dated September 25, 2014 its belated denial of the validity of the said terms of settlement can hardly be

accepted as a defence of any substance to the claim of the petitioner in this application.

For all the foregoing reasons, this winding up application is admitted for the sum of Rs. 15, 24,295.00/-. However, since the rate of interest claimed by

the petitioner at the rate of 2%, per month compoundable on monthly basis from May 15, 2015 appears to me, the same is reduced to 9%, per annum.

Hence, I hold that petitioning creditor is entitled to the sum of Rs. 15, 24,295.00/-, together with interest at the rate of 9%, per annum from May 15,

2015 till realisation.

The winding up application shall be advertised once in the English newspaper, “The Statesman†and once in the Bengali newspaper,

“Bartamanâ€​ by May 10, 2018. Publication in the Official Gazette is dispensed with. Let, this application appeared in the list on May 16, 2018.