- (1.) THE petitioner has prayed for winding-up of the respondent company under Section 439 read with Sections 433 and 434 of the Companies Act, 1956 and for appointment of Official Liquidator as provided thereunder. The petitioner company has sought for the aforesaid directions alleging failure on the part of the company to pay its alleged debt to the petitioner to the tune of Rs. 52,22,114.
(2.) FROM the averments in the petition, it appears that the petitioner-company had deposited a sum of Rs. 5 crores with the respondent-company in the portfolio management scheme. The petitioner-company had also paid a sum of Rs. 5 lakhs towards service charges. It is an admitted position that the respondent-company refunded a sum of Rs. 2 crores and requested the petitioners to continue the said portfolio deposit in respect of the balance amount of Rs. 3 crores for a further period of one year. The said relationship between the two began in February 1993 and the refund of Rs. 2 crores was made in April 1994. On 19-5-1994, the respondent-company paid to the petitioners a sum of Rs. 22 lakhs towards part payment of the income/returns accrued on the funds deployed. It further appears that the respondent-company had confirmed on 30-6-1994 and 31-8-1994 that there was a balance sum of Rs. 3 crores lying as deposit under the scheme, it further appears that on 3-10-1994, the respondent-company paid to the petitioners a sum of Rs. 51,50,351 towards part payment of the income/returns accrued on the funds deployed, it is the case of the petitioner-company that by a letter dated 8-10-1994, the respondent-company had informed the petitioners that the company had worked out the returns on the sum of Rs. 5 crores accrued in favour of the petitioners for the year 1993-94 being sum of Rs. 88,22,465. On 16-3-1995, the balance sum of Rs. 3 crores was refunded by the respondent-company. It is the case of the petitioner-company that along with the said sum of Rs. 3 crores, the company did not pay to the petitioners, the return/ income accrued therein. According to the petitioner-company, however, after repeated requests and several reminders, the company made a payment of Rs. 4. 5 lakhs on or about 30-5-1997 and another sum of Rs. 2,61,918 on or about 19-6-1998 and finally a sum of Rs. 10 lakhs was paid by the respondent-company on 4-5-1999. According to the petitioner-company it was towards the part payment and it claimed that still a sum of Rs. 50,22,114 was due and payable by the respondent-company to the petitioners. The petitioners have further averred that they had issued a statutory notice through their advocates under Sections 433 and 434 of the Companies Act calling upon the company to pay the aforesaid balance amount within a period of 21 days but the company had failed and neglected to make payment in accordance with the said notice and, therefore, the petitioners are constrained to file the present petition seeking to wind up the respondent-company.
(3.) IN reply, the respondent-company has filed an affidavit to oppose the admission of the petition. On 3-9-2002, a so-called further affidavit in support of the company petition has been filed. The respondent-company has also filed a further affidavit on 25-9-2002. According to the respondent-company, there is nothing due and payable as any debt or as any liability towards the petitioner-company. It is also contended that the alleged claim of the petitioners is totally time-barred and not enforceable. The respondent-company has also pointed out that the claim was not an ascertained debt and was based on speculative claim in respect of the income or return on the amounts invested in the share market by the respondent-company on behalf of the petitioners. It is contended that the claim for the next year cannot be the basis of the approximate returns of the previous years. The respondents have set out in the affidavits that out of Rs. 5 crores, an amount of Rs. 2 crores was refunded and thereafter, a balance of Rs. 3 crores was also refunded. The claim of the petitioners on the returns accrued on the fund of Rs. 3 crores for the year 1993-94 was paid in the year 1995. The company has set out the schedule of payment of amount of Rs. 90,62,269 in para 4 of their affidavit dated 25-9-2002.;