SHIV KUMAR SHARMA, J. - (1.) THE petitioner has approached this Court with the following prayer: (a) to direct and order winding up of the respondent company M/s. Ajanta Construction Private Limited under the provisions of the Companies Act, 1956; (b) the Official Liquidator be appointed as Liquidator provisionally in respect of all assets, properties and affairs of the Company. (c) Pass any such order or direction as the Hon'ble Court may deem fit and proper in the facts and circumstances of the case.
(2.) UPON failure to repay the amount of dues outstanding, the petitioner gave a statutory notice to the respondent company under Section 434 of the Companies Act, 1956 (for short 'the Act'), demanding the dues with interest but the respondent company failed to make payment within statutory period, as a result of which the petitioner was led to file instant company petition for winding up under Section 433, 434 and 439 of the Act. It is averred in the petition that the respondent company is a private limited company incorporated under the provisions of the Act having its office at B -13, Industrial Estate, 22 Godown Jaipur. The respondent company was engaged in business of construction and Real Estate Agent such as purchase, take on lease or in exchange or acquire by sale or otherwise to deal layout develop, construct, erect, demolish, re -erect, alter, repair, remodel or do any work in connection with any lands, buildings, schemes, roads, sewers etc. and to take part in the constructions, maintenance, developments, working central and management thereof. The respondent company also improve, manage, cultivate, develop, exchange, letout, lease out or otherwise mortgage, charge, sell, dispose off term of accounts grants, rights and privileges in respect of or otherwise deal with all or any part of the real and personal properties. The petitioner is an unsecured creditor of the respondent company. The petitioner from time to time advanced unsecured loan to respondent company. At the time of advancing loan it was agreed that interest as per prevailing bank rate would be payable on the outstanding amount of loan. The interest was regularly paid to petitioner by respondent company till March 31, 2000, thereafter the respondent company stopped to pay the interest and till March 31, 2007 an amount of Rs. 22,49,009/ - principal amount and Rs. 64,59,969/ - towards interest became due against the respondent company. The petitioner served legal notice on July 13, 2006 to pay the said amount along with interest.
(3.) THE respondent company has raised various contentions against the winding up petition, which are as under: (i) The petitioner himself was the Director of the company till June 28, 2007, when he ceased to be a director on not attending the board's meetings by virtues of Section 283(1)(g) of the Act. Information in this regard was sent to petitioner vide letter dated July 21, 2007. (ii) Although the company is registered as a private limited company, in fact, it is a partnership concern in which the petitioner was director till June, 28, 2007, beside his father Bajrang Lal Bajaj, mother Smt.Gita Devi, brother Ashok Bajaj and brother's wife Smt.Anupama Bajaj. Two directors joined on August 10, 2006 and further two directors joined on September 11, 2006, thus four directors are from the Bajaj family itself. (iii) All the shareholders of the company belong to the families of the petitioner and his father. It was the petitioner who was looking after the construction business, sale of the properties, legal matters and dealing with the bank. (iv) It is on account of misdeeds and mismanagement of the petitioner that the company suffered losses. Bajrang Lal Bajaj and other directors are trying to put the things right. (v) When the company suffered losses, the petitioner instead of shouldering and sharing responsibility for the losses wants to take away funds provided as working capital of the company which has been eroded by his innumerable wrong actions. (vi) The petitioner and his wife are also shareholders of the company. (vii) Even though the fund of the company, for accounting purposes may be termed as unsecured loan under specific advice of petitioner, but the father and mother of petitioner also provided funds. (viii) When the petitioner himself was director of the company till June 28, 2007, the submission of petitioner is surprising that the interest on principal amount in audited account has not been shown and the interest was not paid to him after March 31, 2000. Such action of petitioner itself shows his malafide and ulterior motive. (ix) Winding up petition can be filed only upon the existence of debt and not otherwise. In the instant case there is no existence of debt and there are no dues payable by respondent to the petitioner. (x) The claim of petitioner is vague and arbitrary. (xi) The respondent company cannot be made liable for any fault of petitioner, who himself is responsible for putting the company to suffer loss. (xii) The obvious collateral purpose of winding up petition is to damage the respondent company and economically coerce it in to subjugation which is sufficient for the court to throw out the winding up petition on this ground alone. (xiii) The petition is filed with oblique motive to pressurize the respondent company to make the payment of the amount as alleged to be due, while the petitioner and his wife also are shareholders of the respondent company. (xiv) The dispute involved is a bona fide dispute between the parties and winding up petition is not a legitimate means of seeking to enforce payment of the alleged amount, which is a bona fide dispute. ;