R.V. Easwar, J.@mdashThe petitioner in this winding up petition filed u/s 433(e) of the Companies Act, 1956, is a private limited company engaged in media publicity and advertisement campaign work. The respondent-company, against which the winding up petition has been filed, carries on business in the field of films, television, internet, print etc. and in the development and the distribution in the fields of scanning, editing, special effects, graphics and other digital methods and broadcasting by way of style, cable and other communication media. By two work orders dated 21.3.2011 and 4.7.2011 the respondent appointed the petitioner for two periods of four months each - March to June, 2011 and July to October, 2011 respectively, for carrying out its Out Of Home media campaign (OOH). According to the petitioner, the media campaigns were duly carried out by it. The respondent terminated the services of the petitioner by letter dated 15.7.2011. The termination was to take effect from 4.8.2011. In respect of the campaign undertaken by the petitioner for the respondent-company up to the date of termination, the petitioner raised invoices to the tune of Rs. 10,22,52,738. The respondent-company made part payment of Rs. 3,38,00,568/-, leaving and outstanding balance of Rs. 6,77,62,408/-. It is the case of the petitioner that at no point of time did the respondent-company protest or object with regard to the quality of the work executed by the petitioner and had in fact even asked the petitioner to continue the service for a week more even after termination, without any remuneration. According to the petitioner, this shows that the respondent-company was satisfied with the quality of the work carried out by the petitioner. The outstanding dues to the petitioner were also acknowledged by one Mr. Hitesh Anil Unadkat, Vice President (Sales) of the respondent-company by letter dated 28.10.2011.
2. On 15.3.2012 the petitioner sent a demand notice purporting to be a notice u/s 434 of the Act, to the respondent-company pointing out that despite repeated requests, the respondent-company did not make any payment of the pending bills despite acknowledgement of the dues by letter dated 28.10.2011. The petitioner accordingly called upon the respondent-company to pay the amount of Rs. 6,77,62,408/- with interest at 18% per annum from the due date of payment till it is actually paid. It is necessary to state that in the notice dated 15.3.2012, the address of the respondent-company was shown as flat No. 909, 9th Floor, Kailash Building, 26 Kasturba Gandhi Marg, New Delhi-110001.
3. There was no reply to the demand notice claimed to have been sent by the petitioner on 15.3.2012. The petitioner therefore filed the present winding up petition in this Court on 20.4.2012.
4. By order dated 25.2.2013, this court referred the matter to the Delhi High Court Mediation and Conciliation Centre for settlement. The mediation centre reported on 1.5.2013 that parties were open to settlement and some more time was requested for. Accordingly this court granted further extension of time for mediation. In its order dated 2.5.2013, this court noticed that mediation proceedings had progressed and the next date before the mediation centre was fixed on 7.5.2013. However, on 13.8.2013, the mediation centre submitted a report to the effect that despite best efforts, no compromise could be arrived at between the parties and accordingly sent back the case to this court for appropriate orders. The winding up petition was accordingly heard on 30th September, 2013.
5. The contention put forth on behalf of the petitioner are as follows:
(a) the debt is admitted;
(b) Mr. Hitesh Anil Unadkat has signed the cheques issued to the petitioner and he had also acknowledged the debt vide letter dated 25.10.2011;
(c) The plea taken by the respondent-company in the counter-affidavit to the effect that Unadkat was not authorised to affirm or acknowledge any debt of the respondent-company is an after-thought since he was associated and kept informed of the entire correspondence between the petitioner and the respondent-company as seen from the fact that copies of the e-mail correspondence were marked to him;
(d) Hitesh Anil Unadkat''s services were terminated by the respondent on 25.4.2012, after the winding up petition was filed and even in the termination letter, nothing was mentioned about his exceeding his authority or terms of appointment by acknowledging the debt due to the petitioner. All that was said in the termination letter was that he had misappropriated monies remitted by the clients of the respondent-company. As a matter of fact, an amount of Rs. 3 lakhs was refunded by Mr. Hitesh Anil Unadkat to the respondent-company;
(e) The respondent-company even requested the petitioner to render services free of charge for a period of one week after the termination which showed that it had no grievance against the petitioner in respect of the quality of work;
(f) An e-mail was sent on 3.6.2011 to the petitioner stating that the payments due to the petitioner got delayed due to some unavoidable circumstance and that they will be released in the coming week. This was in response to the petitioner''s e-mail referring to the assurance of the respondent regarding release of the payment, which was not kept.
(g) The counter-claim of Rs. 31,24,734/- made by the respondent against the petitioner in the counter-affidavit is an after-thought and at no point of time in the course of the dealings did the respondent raise any question about the bills/invoices raised by the petitioner.
(h) The respondent had mentioned an "amicable settlement" in its e-mail dated 17.10.2011 which means that the indebtedness is admitted.
6. Besides the above submissions, it was contended on behalf of the petitioner that the conduct of the respondent was not bona fide, which is a relevant factor to be taken into consideration in proceedings u/s 433(e) of the Act. It was submitted that having initially not raised any dispute with regard to the quality of the work executed by the petitioner, the respondent-company has now questioned the same which shows that it is only trying to somehow avoid the payment of the legitimate dues of the petitioner. The respondent-company, it is pointed out, has only now disputed in the counter the acknowledgment given by Hitesh Anil Unadkat on the ground that he was employed only as the Vice President in-charge-of sales and had no authority to acknowledge or confirm the debts of the respondent-company. Such a plea is taken at a very late stage and was not put forward in any of the earlier proceedings ending with the proposal to amicably settle the matter, made in the e-mail dated 17.10.2011. It is further pointed out that a technical plea is now raised that no demand notice u/s 434(1)(a) of the Act was served on the respondent-company, taking undue advantage of the error made by the postal department in printing the address of the respondent-company in the postal receipt. It is pointed out that the demand notice itself was properly and correctly addressed to the respondent-company at its registered office.
7. On the other hand, the contentions put forward on behalf of the respondent are as under:
(a) Section 434(1)(a) requires the demand notice to be served on the company by causing it to be delivered at its registered office by registered post or otherwise and the provision is mandatory in nature and if there is any deviation in complying with the same, the result is that the respondent-company cannot be deemed to be unable to pay its debts. The envelope bearing the correct address of the respondent has not been produced. Therefore, there is no conclusive evidence of service of the demand notice on the respondent.
(b) Annexure P7 to the winding up petition, which is a copy of the schedule reflecting the outstanding calculated together with 18% interest per annum sent was not signed by the petitioner.
(c) The acknowledgement purported to have been issued by Hitesh Anil Unadkat on 28.10.2011 does not bind the respondent company since it was issued by a person who was not authorised or empowered by the respondent-company to confirm or acknowledge any debt. Hitesh Anil Unadkat was in-charge of sales and was not either from the marketing department or the accounts department. The balance confirmation, in order to bind the respondent-company, should be by either the Managing Director or the Director or any authorised person.
(d) In the e-mail dated 3.6.2011 purported to have been sent by the respondent-company assuring the petitioner that the payments will be released in the coming week, the amount was not quantified and therefore cannot be relied upon by the petitioner to contend that the respondent-company has admitted its indebtedness to the petitioner in the amount as claimed by the petitioner.
(e) The e-mail dated 17.10.2011 which refers to an amicable settlement, sent by P K Tewari, the managing director of the respondent-company is an innocuous or equivocal communication which merely expresses the willingness or the "amiable nature" of the respondent-company. This e-mail sent by the managing director of the respondent-company also shows that the balance confirmation said to have been issued by Hitesh Anil Unadkat is of doubtful veracity.
(f) Annexure R-1 to the counter-affidavit is the Standard Operating Process issued by the Association of outdoor media owners, marketers, concessionaries etc. It requires, in Clause E(v), that once a display booking is received by execution of CCF (which means Commission Confirmation Form), the principal (i.e. the petitioner) shall be responsible to furnish proof of display along with invoices as provided in the media contract, as well as to provide credit notes and/or, in general, follow the by provisions of the media contract. According to the respondent-company the petitioner did not furnish any such proof along with the invoices.
(g) The terms of appointment of Hitesh Anil Unadkat do not include an authority to confirm balances against the respondent-company. He was terminated by letter dated 25.4.2012 on charges of defalcation and was asked to refund the amounts defalcated out of the monies by the clients of the respondent-company. He in fact refunded Rs. 3 lakhs to the respondent-company.
(h) The allegations in para 9 of the petition that the respondent is insolvent and has lost all commercial viability and its continued existence is a threat to the commercial world are completely wrong. The respondent-company is a going concern. It is solvent and is running a TV channel "Mahuaa Bhojpuri". It is fully able to pay its debts. It is commercially viable. It has over 400 employees and debtors worth Rs. 11,37,75,866/-. The gross receipts of the respondent in the past three months were over Rs. 7 crores. In these circumstances, it cannot be said that the respondent-company is unable to pay its debts.
8. In support of the aforesaid submissions the learned counsel for the respondent-company referred to several authorities which will be noticed, if necessary, at the appropriate juncture.
9. In his brief rejoinder, the learned senior counsel for the petitioner drew my attention to page 45 of the rejoinder filed by the petitioner which is a copy of the e-mail sent by Mr. Nirmal Thakur, Secretary of the Outdoor Advertising Association to Mr. Tewari, the managing director of the respondent-company. The e-mail specifically refers to the "long outstanding dues" of M/s. Harmuny Entertainment Pvt. Ltd., the petitioner herein, and exhorts him that there shall be no more delays in the processing of payments to the vendors/suppliers/agencies who had carried out the Mahuaa Bangla campaign in Calcutta and the rest of Bengal. According to the learned senior counsel, this is proof of the indebtedness of the respondent-company to the petitioner. It is further pointed out that in the termination notice issued to Hitesh Anil Unadkat, there is not even a whisper about the balance confirmation given by him in favour of the petitioner or to the fact that it was in excess of the authority given to him.
10. On a careful consideration of the facts and the rival contentions, I am of the view that the winding-up petition has to be admitted. I give my reasons below.
11. SERVICE OF NOTICE: -
(a) The objection of the respondent-company that the notice issued by the petitioner on 15.03.2012 u/s 434(1)(a) of the Act cannot be upheld. It is true that the provision mandatorily requires that the notice shall be served on the company, by causing the same to be delivered at the registered office by registered post or otherwise. A perusal of the notice dated 15.03.2012 shows that it is addressed to the company at Flat No. 909, 9th Floor, Kailash Building, 26, Kasturba Gandhi Marg, New Delhi-110001. I have already referred to this fact in para 3. It is not disputed that this is the address of the registered office of the respondent-company. What is, however, pointed out on behalf of the respondent-company is that the postal receipt shows the address of the registered office as No. 16, Kasturba Gandhi Marg, New Delhi - 110001. It is also pointed out that the tracking result shows that the notice was delivered on 17.03.2012 at 00:00:00 under the column "Time", which cannot obviously be correct. It is accordingly submitted on behalf of the respondent-company that the service of the notice has not been conclusively proved.
(b) I am unable to uphold the objection. The requirement of the section stands complied with if the demand notice is served on the respondent-company at its registered office by delivery. As already noticed, it is not disputed that the notice was addressed to the company at the correct address of its registered office. The receipt issued by the postal department is not conclusive for the issue thereof is not in the control of the petitioner. It is quite likely that instead of typing 26, K.G. Marg, New Delhi - 110001, the person in the postal department, who issued the receipt, committed an error and typed the No. 26 as "16". This is likely because in the keyboard, the figures "1" and "2" are placed side by side and there could possibly be a mistake committed by the postal clerk in pressing the key showing "1", instead of the key showing "2". The tracking report, a copy of which is placed at page 49 of the company petition, is also not conclusive since the time 00:00:00 may also very well be a mistake. A perusal of the tracking result shows that the item was booked on 15.03.2012 at the GPO at Kolkata. The time noted is 15:29:49. Thereafter there are 10 entries showing the movement of the item from one post office to the other. The time at which the item reached the different post offices are mentioned. For example, on 15.03.2012, the bag containing the item was despatched by the GPO at Kolkata to New Delhi at 17:34:34. Thereafter, the entire movement of the bag containing the item has been tracked and the timings given to the second. In the last but one entry, the item is shown to have been received at New Delhi Head Office, for delivery, at 06:52:56 on 17.03.2012. The last entry shows the item to have been delivered on 17.03.2012 at 00:00:00. When every entry in the tracking result shows the time accurately, it is a matter of reasonable inference that the time of 00:00:00 shown on 17.03.2012, when the item is stated to have been delivered was only a mistake. The entire tracking of the item and the cogent manner in which every entry is made therein gives no room for doubt that the item was delivered at the correct address on 17.03.2012, though the mention of the time may be wrong. It is not fatal that the time of delivery was not mentioned or was wrongly mentioned. It is the fact of delivery which is more important. I am, therefore, not impressed by the objections taken on behalf of the respondent-company based on the postal receipt and the time mentioned in the tracking report on 17.03.2012.
(c) Section 27 of the General Clauses Act would also come to the rescue of the petitioner. The section is as follows: -
27. Meaning of service by post. - Where any Central Act or Regulation made after the commencement of this Act authorizes or requires any document to be served by post, whether the expression "serve" or either of the expressions "give" or "send" or any other expression is used, then, unless a different intention appears, the service shall be deemed to be effected by properly addressing, pre-paying and posting by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at which the letter would be delivered in the ordinary course of post.
It may be seen from the section that it is the "letter" which is to be properly addressed, prepaid and posted by registered post. This is relevant because in the course of the submission, the learned counsel for the respondent-company pointed out that the envelope containing the letter was not produced by the petitioner to show that it was correctly addressed. The requirement of the section, however, is not that the envelope should be correctly addressed. Moreover, the production of the envelope containing the correct address would have proved quite the contrary of what the petitioner contends for; it would have only proved that the letter was not posted or served. Therefore, advisedly the section does not require the envelope containing the letter to be produced in proof of delivery. It would have been quite ridiculous to do so. A similar objection was raised before the Kerala High Court in
4. Learned counsel for the tenant would, on the other hand, argue that the presumption can be availed of by the landlord, only if he proves that the letter was correctly addressed and from the postal receipt it is not possible to say that it was posted in the correct address of the tenant. A letter correctly addressed and posted, if not received back through the dead letter office must be presumed to have reached the addressee. In the postal receipt, normally the whole address of the addressee is not given; only his name and the name of the post office to which the letter is addressed will be shown. So, from the postal receipt it cannot be argued that the letter was not sent in the proper address. The copy of the notice filed along with the postal receipt shows that it was sent in the correct address of the tenant (Mullerimanathil Aboobacker, merchant, Midayi Street, Kozhikode). As the letter was not received back, it has to be presumed, in the circumstances, that it duly reached the addressee and was received by him.
It may be noticed that in the case before the Kerala High Court, the letter was correctly addressed, though from the postal receipt it was not possible to say that it was posted to the correct address. In these circumstances, the presumption u/s 27 of the General Clauses Act and Section 114 of the Evidence Act was invoked and it was held that so long as the letter was correctly addressed, and there was no evidence to show that it was received back, it has to be presumed that it duly reached the addressee and was received by him. This judgment squarely applies to the present case. The letter was properly addressed to the correct registered office of the respondent. The postal receipt is proof that the letter was prepaid and was sent by registered post. The tracking report cogently and chronologically shows the movement of the letter from Kolkata till it was delivered to the addressee in New Delhi. The errors committed in the postal receipt and the tracking report are not fatal to the claim of the petitioner. These are not in his control. The respondent has not led any evidence to show that the letter was returned unserved. In these circumstances, I hold that the demand notice u/s 434(1)(a) was duly served on the respondent-company at its registered office.
12. AUTHORITY OF HITESH ANIL UNADKAT: -
(a) This objection is also in my opinion without merit. It must be remembered that the petitioner is not expected to know the terms of appointment of the employees of the respondent-company, which is an internal matter and subject of the contract of appointment between the respondent-company and its employees. The petitioner is entitled to assume that the acts performed by the employees of the respondent-company are within the scope of their employment in the absence of any express disclaimer made by the respondent-company. There is no evidence in the present case that the respondent-company at any time informed the petitioner of the terms of employment of Unadkat or that Unadkat was not authorised to acknowledge any debt on behalf of the respondent-company. It is not in dispute that some of the cheques issued by the respondent-company to the petitioner were signed by Unadkat. A perusal of the terms of appointment of Unadkat dated 29.06.2010, shows that he was not specifically authorised to sign cheques on behalf of the respondent-company. Nevertheless, he has signed cheques which were issued to the petitioner. It is thus clear that Unadkat, to the knowledge of the respondent, acted beyond the scope and authority of the terms of appointment but those acts (such as issuing cheques) were not disclaimed by the respondent. It is thus clear that the objection is taken by the respondent-company only as an after-thought, by taking advantage of the fortuitous circumstance that the terms of the appointment did not expressly include acknowledgement of any debt. Upholding the objection of the respondent-company would lead to disastrous consequences; it would embolden companies to disown the valid acts of their employees without any justification. It is not the case of the respondent-company, even in the termination letter issued by it to Unadkat, that he had unauthorisedly acknowledged the debt of the respondent-company in favour of the petitioner. No specific allegation to this effect is seen to have been made in the e-mail dated 24.05.2012 sent by the respondent-company to Unadkat; no such allegation is also found to have been made in the legal notice dated 06.06.2012 issued to him. All that it states is that as per credible information received by the respondent, Unadkat was responsible for several irregularities in his dealings and accounts and caused wrongful loss by suppressing various sums of money which was legally due and payable to the respondent from various agencies doing business with the respondent. Unadkat was directed to settle all the accounts and make good the financial loss. In response to the notice, Unadkat paid an amount of Rs. 3,00,000/- to the respondent and the matter was closed. There is no allegation made by the respondent-company against Unadkat to the effect that he had acknowledged the debt due to the petitioner without authority to do so. I am, therefore, satisfied that this objection raised by the respondent-company is also an after-thought and mere moon-shine.
13. COUNTER CLAIM AND QUALITY OF WORK: -
(a) The respondent has raised a counter claim against the petitioner in the amount of Rs. 31,24,734/-. This has however been raised for first time in the counter affidavit. The justification given in the counter affidavit is that though the entire deal with the petitioner was for a specific number of sites to be displayed every month, the petitioner "played a fraud upon the respondent-company" by showing sites which were different from the sites on which the creatives were actually shown. It is thus claimed that the petitioner company was entitled only to 30% of the amounts of the bills/invoices and thus there was an over-payment to the extent of Rs. 31,24,734 when the respondent made the payment of Rs. 3,38,00,568/- to the petitioner out of the bills/invoices raised totalling to Rs. 10,22,52,783/-. There is however no evidence to support the counter-claim of the petitioner which was raised for the first time in the counter affidavit. Moreover, at no point of time did the respondent raise any dispute as to the quality of the services offered by the petitioner. To a pointed query put by me to the learned counsel for the respondent in the course of the hearing as to whether the respondent did raise the issue of quality of the services of the petitioner or absence of any proof of display attached to the bill/invoice, he answered that there is no letter or communication to this effect on record. In a case of this magnitude where the bills raised by the petitioner are of an amount in excess of Rs. 10 crores, it is reasonable to proceed on the basis that had there been any deficiency or defect in the quality of the services rendered by the petitioner or if the bills/invoices were not accompanied by any proof of display, the respondent company would have taken it up with the petitioner contemporaneously or immediately after the receipt of the bills or invoices and would have protested but there is no evidence to that effect on record as admitted on behalf of the respondent. Moreover, even after the respondent terminated the arrangement with the petitioner, it requested the petitioner to continue the services for a week more free of charge. This also shows that the respondent never had any complaint about the quality of the work executed by the petitioner, nor did it question the correctness or authenticity of the bills/invoices and the amounts raised therein on the ground of lack of proof of display. These objections are therefore only an after-thought and no credence can be given to them. In
14. ACKNOWLEDGEMENT OF THE DEBT:-
(a) As already noticed, on 28.10.2011, Hitesh Anil Unadkat, Vice President (Sales) of the respondent had acknowledged the dues to the petitioner. I have already held that it was a valid acknowledgement and rejected the objection of the respondent-company that Hitesh Anil Unadkat did not have the authority to acknowledge debts against the respondent, in terms of the authority given to him by the appointment letter. In addition to the acknowledgment of Unadkat, one of the officers of the respondent-company, Mr. Trinanjan, also acknowledged the dues to the petitioner by e-mail dated 6.3.2011. In this e-mail addressed to the petitioner, he stated that due to some unavoidable circumstances the payment got delayed and as discussed, the payments will be released in the coming week. That apart on 17.10.2011, Mr. P K Tewari, the managing director of the respondent company, sent an e-mail to Mr. Yubaraj of a respondent company, who was one of the officers who regularly dealt with the petitioner, in which he (P K Tewari) directed Yubaraj to convene a meeting of all the producers (of which the petitioner was one) on 3rd/4th November "to address all concerns and have an amicable settlement with all of them". Yubaraj was requested to forward the e-mail to all the producers. The e-mail, insofar as it refers to an amicable settlement with the producers, serves as an acknowledgement of the debt to the petitioner who was also one of the producers, particularly when a copy of the e-mail was directed to be marked to all the producers.
15. It is therefore not possible to accept the claim put forth on behalf of the respondent-company that there was no valid acknowledgment of the debt due to the petitioner. There is also another aspect of the matter. It is a well-settled proposition that in the case of a company, an entry made in the balance sheet acknowledging a liability extends the period of limitation for the recovery of the debt. It is therefore of no use for the respondent-company to raise the point of acknowledgment without producing its balance-sheets to show that no entry had been made therein acknowledging the debt due to the petitioner. The balance sheets were not produced before me.
16. It was argued on behalf of the respondent that it was a going concern, was solvent and was running a TV channel "Mahuaa Bhojpuri". It employs 400 employees and has debtors worth over Rs. 11.37 crores. The gross receipts for the past three months were in excess of Rs. 7 crores. These facts and figures were given in support of the contention that the respondent is a solvent company and should not be ordered to be wound up. In
The case before me appears to fall within its category. If the respondent-company is really solvent, as it claims, then it should pay up the petitioner. However, it has taken several defences resisting the winding up petition. All these defences, which have been discussed above, appear to me to be hyper-technical, moonshine and not substantial. If that is so, it is only a case of the company being solvent but choosing not to pay the petitioner. In terms of the ruling of the Supreme Court cited above, I cannot act on such a defence.
17. I will now briefly refer to the authorities cited on behalf of the respondent-company. I will first take up the judgments of this Court which he cited. In
18. In Company Petition No. 612/2012 in the case of PLD International Pvt. Ltd. Vs. Reebok India Company, again the decision turned on its facts. Dr. S. Muralidhar, J, held that he was not satisfied, "on the basis of the documents placed on record by the petitioner that the defence of the respondent is moonshine or false". Again in Company Petition No. 66/2013 in CBZ Chemicals Vs. Kee Pharma Ltd., the same learned Judge, dismissing the winding up petition held that the response of the company to the legal notice issued by the petitioner "raises disputed questions of fact, which will require examination of evidence in other appropriate proceedings. It is not possible to conclude that the defence of the respondent is a mere "moonshine" and not bona fide." These observations of the learned judge show that it is a question of fact to be examined in each case as to whether the defence of the company is bona fide, substantial and not merely moonshine.
19. I may now turn to the other authorities cited by the learned counsel for the respondent company. In
20. I will now refer only to the judgment of the Supreme Court in IBA Health (I) P. Ltd. Vs. Infodrive Systems Sdn. Bhd. which is an oft-cited judgment. The relevant observations of this judgment are as follows:
A legal notice prior to the institution of the company petition could be served on the company only in respect of a debt (then due) and a company could be wound up only if it was unable to pay its debts. In this case, there is a bona fide dispute as to whether the amount claimed is presently due and if, at all, it is due, whether the appellant company is liable to pay the sum unless they have received the same from M/s. Solutions Protocol Sdn. Bhd. Where the company has a bona fide dispute, the petitioner cannot be regarded as a creditor of the company for the purposes of winding up. "Bona fide dispute" implies the existence of a substantial ground for the dispute raised. Where the Company Court is satisfied that a debt upon which a petition is founded is a hotly contested debt and also doubtful, the Company Court should not entertain such a petition. The Company Court is expected to go into the causes of refusal by the company to pay before coming to that conclusion. The Company Court is expected to ascertain that the company''s refusal is supported by a reasonable cause or a bona fide dispute in which the dispute can only be adjudicated by a trial in a civil court. In the instant case, the Company Court was very casual in its approach and did not make any endeavour to ascertain as to whether the company sought to be wound up for non-payment of debt has a defence which is substantial in nature and if not adjudicated in a proper forum, would cause serious prejudice to the company.
The above observations also show that the question whether the defence raised by the company, against whom the winding up petition is filed, is bona fide and substantial and not false and mere moonshine is a question of fact to be determined on the facts and circumstances of each case. The other decisions cited by the learned counsel for the respondent reiterate this position and therefore are not separately dealt with.
21. The learned counsel for the respondent-company filed a list of company petitions filed by several persons/companies against it seeking its winding up, which were ultimately settled by the respondent. This was an attempt to show that the respondent, when it referred to amicable settlement in one of the e-mails marked to the petitioner, was serious about it and ultimately the present dispute may also be settled. This only serves as an acknowledgment of the debt, if anything. It is not an answer to the winding up proceedings. It is however made clear that if the parties are willing to settle the dispute, there is no impediment to do so.
For the aforesaid reasons, I admit the winding petition against the respondent company.
CO. APPL. No. 349/2013
This application filed by the respondent company is for condonation of delay in complying with the order passed by this court on 27.11.2012. For the reasons stated in the application the delay stands condoned and the application is disposed of.
CO. APPL. No. 1717/2013
This application filed by the petitioner is for condonation of delay in filing the rejoinder. For the reasons stated in the application the delay is condoned and the application is disposed of.
CO. APPL. No. 351/2013
This is an application filed by the petitioner seeking the appointment of a provisional liquidator u/s 450 of the Companies Act, 1956.
List the application and Company Petition No. 213/2012 for further proceedings on 11th March, 2014.
