- (1.) The parties entered into a joint venture agreement for setting up a project in the State of Mizoram. However, the joint venture did not materialise. The appellant thereafter agreed to sell its plant, machinery, vehicles and all other equipments arranged for the said project to the respondent at and for a sum of Rs.2,75,73,614/-. They accordingly agreed on terms for sale and prepared a schedule containing 47 items of plant and machinery and 18 vehicles including two-wheelers and four-wheelers and an agreement was entered into by the company to the said effect. The respondent paid a sum of Rs.5 lacs as first instalment. It was agreed that they would make payment of the purchase price at a monthly instalment of Rs.20 lacs except the last instalment. The instalments were payable on the 15th day of each English calendar month and default would attract interest at the rate of 12 per cent per annum. The company paid diverse sums from time to time, aggregating to Rs.48 lacs and defaulted balance sum of Rs.2,27,73,614.41p that attracted an additional sum of Rs.64,28,359/- as and by way of interest up to March 31, 2011. The appellant issued a statutory notice of demand on April 14, 2011. The company replied to the same on May 16, 2011 being dealt with in a rejoinder by the appellant issued on June 8, 2011. The company denied its liability as according to them money did not become due and payable in absence of "No Objection Certificate" being issued by the appropriate authorities enabling the respondent company to register the vehicles in their name. There are other issues to raise by the company. The appellant filed a winding up petition that was contested by the company, taking identical stand as they took in their reply to the statutory notice of demand. The learned Judge considered the defence and held that company was unable to disclose any bona fide defence. The learned Judge gave opportunity to the company to secure the claim by way of a Bank Guarantee. Hence, this appeal by the appellant.
(2.) We are told, the respondent duly furnished bank guarantee on March 7, 2012 whereas the present appeal was filed on March 21, 2012. Mr. Mainak Bose, learned counsel appearing for the appellant raised a legal issue as to whether the learned Judge was right in relegating the parties to suit even after holding that the company could not demonstrate a bona fide defence. He relied on two Apex Court decisions in the case of M/s. Aero Traders Pvt. Ltd VS- Ravinder Kumar Suri, 2005 AIR(SC) 15 and in the case of IBA Health (India) Private Limited VS- Info-Drive Systems Sdn. Bhd., 2010 10 SCC 553.Mr. Samrat Sen learned counsel appearing for the company contended, even if the company was unable to defend the claim upto the expectation of the learned Judge, the existence of the defence, even if considered as weak, could not by itself attract the order of admission of winding proceeding particularly when the company secured the claim. He referred to Section 434(1)(b) of the Companies Act, 1956 to say, once the claim was secured the winding petition would automatically fail. Mr. Sen contended, there was inordinate delay in furnishing "No Objection Certificate". There were other disputes as pointed out by the company in their correspondence. The company could not use the vehicles and/or plant and machinery for a considerable period and had to hire those from outside. The company had a counter claim of Rs.5 crores an odd. The winding up petition was rightly dismissed and parties were rightly relegated to suit on terms. He lastly contended that the decision in the case of Kiranmayee Devi reported in 49 Calcutta Weekly Notes Page-246 so reiterated in the case of M/s. Mechalec Engineers & Manufactures VS- M/s. Basic Equipment Corporation, 1977 AIR(SC) 577 would govern the issue. Mr. Sen relied on the guideline so framed by the learned Single Judge in the case of Kiranmayee Devi . He relied on the eventuality (e) so spelt out by His Lordship as quoted below :- e) If the defendant has no defence or the defence is illusory or sham practically moonshine then although ordinarily the plaintiff is entitled to leave to sign judgment, the Court may protect the plaintiff by only allowing the defence to proceed if the amount claimed is paid into Court or otherwise secured and give leave to the defendant on such condition and thereby show mercy to the defendant by enabling him to try to prove a defence."
(3.) Relying on this paragraph quoted above Mr. Sen contended that even after the observance so made by the learned Single Judge in the present case he would come under Clause (e) to attract an order for security and the learned Judge rightly directed security to be furnished. He lastly contended that the order was acted upon on March 7, 2012 when no appeal was filed. Subsequent appeal after the order having been acted upon was not maintainable. Mr. Ranjan Bachawat, learned counsel also appearing for the company relied on the decision in the case of Bharat Vegetable Products reported in Volume-22, Company Cases Page-62 to support his contention, whether the dispute of a debt was bona fide or not, could be decided giving waitage to the eventuality when company secured the claim. The learned Single Judge in the case of Bharat Vegetable Products observed as follows :- "In deciding whether the debt is disputed bona fide, the offer of the company to furnish security for the full amount of the claim and its rejection should be taken into account as they are material evidence of the bona fides of the company.";