- (1.) THIS Petition has been filed under Sections 433 and 434 of the Companies Act seeking an order for winding up of the Respondent Company on the ground that the Company is unable to pay its debts.
(2.) THE company is stated to be indebted to the petitioner in the sum of Rs. 547.40 lakhs. It is stated that during the period September, 1991 to February, 1992 funds of the Petitioner to the extent of Rs.1309.40 lakhs were placed under the Portfolio Management Scheme with the Company, a Member of the Stock Exchange, Mumbai, having expertise in managing financial investments, between 24th April, 1992 and 16th June, 1993 a sum of Rs.505 lakhs was withdrawn by the Company. Thus, the amount remaining with the Company was Rs.8,04,40,450/-. This fact is acknowledged by M/s. L.K.Panday on 15th June, 1995. In the meantime the petitioner was declared as a sick company by the BIFR. The Petitioner Company being in need of funds frequently requested for the return of the amounts invested by them with the Respondent Company. As no response was forthcoming, the petitioner through their Advocates called upon the Company to refund the entire sum. This letter was also written to Mr.L.K.Panday. The balances were again confirmed by M/s.L.K.Panday by their letter dated 30th June, 1997. Pursuant to the notice dated 27th March, 1996 the Company refunded a sum of Rs.2.57 crores upto 31st March, 1998. It is stated that even after deducting the amount, the Company is liable to pay Rs.547.40 lakhs. The Petitioner again by their Advocate's letter dated 9th April, 1998 called upon the Company to repay the balance principal amount together with interest from April, 1994 to March, 1998 totalling to Rs.1092.83 lakhs. This notice is attached as Exhibit-K to the petition. This is the first notice which is sent to the Respondent Company. No reply has been given by the Respondent Company to the aforesaid notice. Thereafter another notice was sent on 21st July, 1998 again to the respondent company. Again, no reply has been given by the Respondent Company. The affidavit in reply has been filed in which the plea taken is that no cause of action has arisen against the Respondent Company. The petition has been filed seeking to recover debt of M/s.L.K.Panday on the footing that the Respondent Company is the successor of the said firm. This is stated to be factually incorrect. It is stated that the Respondent Company has not taken over the entire business of M/s.L.K.Panday. The aforesaid firm had three different businesses viz.. (1) New issue of Shares, (2) Buying and Selling of shares in the secondary market and (3) Portfolio Management Scheme. The Respondent Company was incorporated on 18-1-1994. With effect from 1-4-1995 the Respondent Company took over only two businesses of M/s. L.K.Panday viz. (i) New issue of shares and (ii) Buying and selling of shares in the Secondary market. The business of Portfolio Management Scheme of M/s. L.K.Panday was not taken over by the Respondent Company. M/s. L.K.Panday are still carrying on business in their own name even today. Learned Counsel appearing on behalf of the petitioner has submitted that the plea raised by the Company is false on the face of it. He has adverted to a large number of documents attached with the rejoinder wherein the Respondent Company has forwarded demand draft to the petitioner towards repayment of principal amount. He has also stated that M/s. L.K.Panday partnership firm is part and parcel of L.K.Panday Shares and Securities Ltd. He points out to a letter dated 5th March, 1997 wherein the Respondent Company has described itself as formerly M/s. L.K.Panday. He has also brought to the notice of the Court a letter dated 27th October, 1998 in which the Respondent Company has informed the Petitioner that they are sending a statement of accounts of the transaction from the beginning till date. This statement shows that payments have been made to the Petitioner Company from 1992 till Sept. 1998. In the face of these documents, it is submitted by the learned Counsel that it cannot be believed that the Respondent Company has not assumed responsibility for the liabilities of L.K. Panday.
(3.) MR .Tulzapurkar, learned Counsel appearing for the Company, submits that the aforesaid demand drafts were forwarded by the Company on the request of L.K.Panday and M/s. L.K.Panday Merchant Financing Ltd. He submits that mere forwarding of the demand draft along with the letter would not amount to an admission of the liability on behalf of the Respondent Company. He has relied upon three certificates issued by Chartered Accountants. Exhibit-1 to the sur-rejoinder is the certificate dated 6th April, 1999 in which it is stated that the Respondent Company has made only one payment of Rs.5 lakhs to the petitioner under instructions from their clients M/s.L.K.Panday and the same has been debited to their account with the Company. Exhibit-2 is a certificate which verifies from the books of account of LKP Merchant Financing Limited with respect to payments made by them to the Petitioner on behalf of M/s. L.K.Panday during the years 1996-97, 1997-98 and 1998-99. Exhibit-3 is verification of accounts of M/s.L.K.Panday with regard to the payments made to the petitioner. On the basis of the above, it is submitted that it cannot be held that the Respondent Company has assumed and taken over the liability of M/s.L.K.Panday.;