Ashis Kumar Chakraborty, J. - (1.) In this application, the petitioner has prayed for winding up of the respondent company.
(2.) The petitioner claims that the company is controlled by its principal director, Naresh Narayan Kohli and his son Varun Roshan Kohli is the sole proprietor of M/s. Kohl Bro. International (hereinafter referred to as "the said firm"). The company and the firm have been in the business , inter alia, of importing walkie talkies (hereinafter referred to as "the said goods") and accessories and supplying the same to various government departments and private sector companies. As per the respective agreements between the petitioner, company and the firm, the petitioner imported the said goods by making remittances to the overseas suppliers and sold the said goods to the company and the firm, respectively on high sea sales basis. The company and the firm had to pay the petitioner, the price of the said goods sold to them together with service charges. On account of the goods sold to the company Rs. 17,59,128/- remained due and outstanding by the company to the petitioner as on March 31, 2019. So far as the said goods sold to the said firm Rs. 6,15,167/- remained due and owing by it to the petitioner as on March 31, 2014. The various cheques issued by the company to the petitioner for Rs. 13,50,731/- were dishonoured upon presentation for encashment and the petitioner instituted proceedings against the company under Section 138 of the Negotiable Instruments Act, 1881 (in short "the N.I. Act"). The petitioner also issued a notice dated April 16, 2014 to the company under Section 434 of the Companies Act, 1956 (in short "the Act of 1956"). Two cheques for the aggregate amount of Rs. 6,15,167/- issued by the said firm to the petitioner were also dishonoured upon presentation for encashment. The petitioner also filed proceedings against the proprietor of the said firm under Section 138 of the N.I. Act and also filed a police complaint in Hare Street Police Station Case No. 269 dated April 25, 2014 against the persons in control of the company and the proprietor of the said firm. At the instance of the company and the said firm on September 25, 2014 a memorandum of settlement (hereinafter referred to as "the said memorandum of settlement") was entered into between the petitioner, the company, the firm and the principal director of the company namely, Naresh Narayan Kohli providing, inter alia, as follows: a) the company and the firm admitted their dues to the petitioner as on March 31, 2014 to be Rs. 17,59,128/- and Rs.6,15,167/-, respectively. b) subject to the payment of Rs. 20 lakhs by the company to the petitioner within June 15, 2015 as per the agreed instalments the petitioner agreed to accept the outstanding dues of the company and the firm as on March 31, 2014 at Rs. 15,00,000/- and Rs. 5,00,000/-, respectively. c) the company would pay the aggregate amount of Rs. 20 lacs to the petitioner on behalf of itself and the firm in the following manner: i) the company would pay Rs. 1.50 lakhs at the time of execution of the agreement; ii) from the month of October, 2014 and upto the month of May, 2015 company would pay the monthly instalments of Rs. 1,00,000/-, each and the last instalment of Rs. 10.50 lacs would be paid within June 15, 2015. d) The petitioner would agree to the adjournment of the criminal proceedings initiated against the company, the directors and the proprietor of the firm under Section 138 of the N.I. Act, keep the criminal proceedings initiated against the directors of the company and the proprietor of the firm in abeyance and defer the winding up application against the company. e) In default of payment any of above instalments by the company the entire amount of Rs. 17,59,128/- and Rs. 6,15,167/- aggregating to Rs. 23,75,295/- would forthwith become due and payable by the company to the petitioner with panel charges on the amount then remaining due at the rate of 2% per month compoundable on monthly basis and the petitioner would also be entitled to proceed with the pending proceedings under Section 138 of the N.I. Act and the Hare Street P.S. Case No. 269 dated April 25, 2014 and to file winding up proceeding against the company. The petitioner has disclosed a copy of the said memorandum of settlement in the application. f) At the time of execution of the said memorandum of settlement dated by a demand draft dated September 25, 2014 the company paid Rs. 1.50 lakhs to the petitioner and issued 9 post dated cheques of various dated in favour of the petitioner.
(3.) The first post dated cheque dated October 15, 2014 issued by the company in favour of the petitioner for Rs. 1 lakh was honoured upon presentation by the petitioner. However, the post dated cheques dated November 15, 2014, December 15, 2014 for Rs. 1 lakh each issued by the company were dishonoured due to insufficient funds in the bank account of the company. Subsequently, on November 20, 2014 and December 17, 2014 the company paid the defaulted monthly instalments for the month of October, 2014 and November, 2014 of Rs. 1 lakh each to the petitioner in its bank account through NEFT. According to the petitioner, this is evident from its letters dated April 20, 2014 and April 20, 2015 issued by itself to the company, the copies whereof have been disclosed. The post dated cheques dated January 15, 2015, February 15, 2015 and March 15, 2015 of Rs. 1 lakh each issued by the company in favour of the petitioner on account of monthly instalments for the months of January, 2015, February, 2015 and March, 2015 were honoured by the banker of the company. So far as the monthly instalments for the month of April, 2015 is concerned, after the cheque dated April 20, 2015 issued by the company was dishonoured and in between April 23, 2015 and May 23, 2015 the company deposited Rs. 1 lakh in the bank account of the petitioner through NEFT. However, the post dated cheques Rs. 1 lakh and Rs. 10.50 lakhs issued by the company to the petitioner on account of monthly instalments for the month of May, 2015 and the last instalment payable in the month of June, 2015, respectively were dishonoured due to insufficient fund in the bank account of the company. The copies of the said dishonoured cheques along with the copy of the dishonour note issued by the banker of the company have also been disclosed in the application. In the meantime, by a letter dated May 06, 2015 the company alleged that Rs. 61,176.26/- is payable to itself by the petitioner. By a letter dated May 07, 2015 addressed to the company the petitioner denied any liability to make any payment to the company. According to the petitioner, in view of the dishonour of the said two cheques dated May 15, 2015 and June 15, 2015 issued by the company, as per clause 9 of the said memorandum of settlement, the concession granted by the petitioner to the company for Rs. 3,74,295/- stood revoked and after giving credit Rs. 8.50 lakhs paid by the company, a sum of Rs. 15,24,295/- (being the aggregate of Rs. 3,74,295/-, Rs. 10,50,000/- and Rs. 1,00,000/-) together with interest, at the rate of 2% per month compoundable on monthly basis is payable by the company to the petitioner. By a notice dated July 03, 2015 issued under Section 434 of the Act of 1956, the petitioner through its advocate called upon the company to pay Rs. 15,24,295/- with the rate of interest as agreed in the said memorandum of settlement. The company received the said notice dated July 03, 2015 but did not reply to the same, nor did it make any payment to the petitioner. According to the petitioner, the company has no defence to claim of the petitioner for Rs. 15,24,295/- together with the agreed rate of interest but it is unable to pay the dues of the petitioner. Thus, the petitioner has prayed for winding up of the company.;