LMJ Internatiional Ltd. vs Ajit Kumar Patni

Leave is granted for supplementary affidavit filed. Leave is also granted to amend cause title to bring on record present name of the company.

Amendment be carried out in Court and countersigned by Assistant Registrar.

Petitioner has petitioned for winding-up the company in which he served, according to him, on agreed terms in the period 1st July, 2009 to 31st

January, 2013. Mr. Basu, learned Advocate appears on behalf of petitioner and submits, by letter dated 9th July, 2009, the company, inter alia,

offered his client’s salary at Rs.18 lakhs as fixed Cost to Company (CTC). He submits, this offer was made to preempt his client from leaving the

company. His client accepted this offer by continuing to serve the company. It became, according to him, a unilateral contract.

Petition discloses a break-up of amounts claimed under the contract and received to show a short fall of Rs.35,82,258/-, which Mr. Basu submits, is an

admitted due. Letter dated 11th February, 2013 is of resignation and on 7th September, 2015 statutory notice was served. In between his client had

caused a demand to be made. What is important, is neither demand nor statutory notice was replied by the company.

Mr. Basu submits, defence taken in affidavit in opposition filed is afterthought and akin to moonshine. He relies on several authorities â€

i) British Steel Corp v Cleveland Bridge and Engineering Co. Ltd. reported in (1984) 1 AER 504 in which sometimes called ‘if’ contracts had

been commented upon and view expressed that when a standing offer is acted upon, it results in binding contract.

ii) Daulia Ltd. v. Four Millbank Nominees Ltd. reported in (1978) AER 557 â€" This judgement for same view expressed on

‘if’/‘unilateral’ contract.

iii) Judgement of Federal Court in Jainarain v. Surajmull reported in AIR 1949 Federal Court 211, to paragraph 12. Mr. Basu submits, it was clearly

held that what must be established as a fact for a contract to be, inter alia, varied is that it must be with consent of both parties. His client did never

agree to variation of the contract.

iv) Judgement of Supreme Court in Polymat India (P) Ltd. v. National Insurance Co. Ltd. reported in (2005) 9 SCC 177, to paragraph 22 for

declaration of law that when terms of contract have been reduced to writing, it cannot be changed without mutual agreement of both the parties.

v) Judgement of Supreme Court in Lata Construction & Ors. v. Dr. Rameshchandra Ramniklal Shah & Anr. reported in AIR 2000 Supreme Court

380, to paragraph 11 by which it was declared that one of the essential requirements of novation is that it has to be done by agreement between the

parties.

vi) Order dated 5th April, 2016 passed by a learned Single Judge of this Court in C.P. no. 572 of 2014 (Abhijeet Projects Ltd. â€" And- Shikharesh

Bhattacharya). Learned Single Judge admitted winding-up petition of an ex-employee petitioning creditor where employer had not replied to statutory

notice but sought to take defence in its affidavit that service of petitioning creditor was unsatisfactory.

Mr. Banerjee, learned Senior Advocate appears on behalf of the company. He refers to his client’s affidavit, paragraph 3 (v) and (vi). He submits,

letter dated 9th July, 2009 was never given effect to. Till before 1st July, 2009, petitioner was drawing salary of Rs.42,000/- per month.

Salary of petitioner thereafter was agreed at Rs.80,000/- per month. Petitioner was absent from work for entire months of August and September,

2012 and, therefore, was not paid salary. Similarly for October and November, 2012, petitioner worked for few days and from December, 2012

onwards he completely stopped attending work. He submits with reference to break-up annexed to the petition, contention of his client regarding

salary structure of petitioner in relevant period is an admitted fact. He submits, in any event disputed claim of petitioner is barred by limitation.Â

Petitioner does not have an admitted debt owing to him for the company to be deemed unable to pay its debts.

True it is the company did not reply to earlier letter caused to be written by petitioner nor statutory notice. However, in his resignation letter dated 11th

February, 2013, petitioning creditor said, inter alia, as follows â€

“This is to inform you that from the month of July, 2012 up to 31st January 2013 no payment had been made to me save and except, I came to

know from my bank account that you had deposited a sum of Rs.82,542/- & Rs.10,968/- only in my bank on account on 30th November 2012 & 8th

December 2012 respectively.

I am also entitled for my performance bonus and other entitlements as referred in your letter on dated 9th July, 2009 as revision and other entitlements

payable to me.â€​

It appears from this letter no claim for short payment of salary or CTC prior to July, 2012 was made thereby. This Court, therefore, cannot conclude

unilateral contract as alleged by petitioner. More so because petitioner claimed entitlement of performance bonus and other entitlements referred to

in letter dated 9th July 2009 without reference to short fall of salary amount.

Propositions of law cited by Mr. Basu are not disputed. This court has expressed reasons as to why the claim cannot be pronounced upon as an

admitted due. On query from Court, Mr. Basu submits, without prejudice to his client’s right to avail remedy in appeal, the claim of his client be

relegated to suit. The submission is recorded. Petitioner is at liberty to find his remedy.

The winding-up petition is dismissed.