M SQUARE CATERERS & HOSPITALITY (P.) LTD. Vs. CHOGAME HOTELS (P.) LTD.

JUDGEMENT

(1.) THE present petition is filed under section 614(1) of the Companies Act, 1956 ('the Act') praying this Bench to direct the respondents to file documents as mentioned herein. Shri Kunjal Dalal, learned PCS appeared for the petitioner stated that the company has not filed the following documents/ returns, (a) Copies of balance sheet and profit and loss account laid before the company at annual general meeting ('AGM') for the year 2008 which are required to be filed with the Registrar of Companies ('RoC') within 30 days from the latest day on or before which the meeting should have been held in accordance with the provisions of the Act. (b) Return containing the particulars specified in Part 1 of Schedule V in the form set out in Part II of Schedule V of the Act as they stood on the date of AGM for the year 2008, or latest date by which AGM should have been held in accordance with the provisions of the Act. (c) Return containing the particulars specified in Part 1 of Schedule V in the form set out in Part II of Schedule V of tile Act as they stood on 29th September, 2007 being the date of AGM for the year 2007. (d) Returns containing the particulars specified in Part 1 of Schedule Y in the form set out in Part II of Schedule V of the Act as they stood on 30th September 2006 being the date of AGM for the year 2006. He submitted that the petitioner sent a letter dated 19th May, 2009 to the company for making the default good and waited for 14 working days from the date of delivery of notice under section 614(1) of the Act and viewed status of annual filing on MCA portal but it has been noticed that documents referred to in the notice were not filed by the company. Hence, the petitioner made this application by way of petition to obtain an order from the hon'ble Company Law Board ('CLB') directing the respondents to file the documents,

(2.) THE respondents filed reply to the petition. Shri Suryanarayana, learned counsel for the respondents submitted that the petition filed by the petitioner is mala fide, vague, lacking in any evidence and contrary to the facts or details required in terms of section 614 of the Act. The petitioner is not the creditor of the respondent -company and has not furnished any single evidence as creditor of the company. The petitioner is only a licence holder of the company to run, manage and operate the club facilities and food and beverage business owned by the respondent -company which was terminated and the matter is subjudice before many forums where both the respondents and petitioner and/or their directors have filed cross complaints against each other. The petitioner has not disclosed this fact anywhere in the petition and, thus, has not come with the clean hands and the petition is liable to be summarily rejected at preliminary stage of admission and should not be admitted at all. It is submitted that the present petition is nothing but a part of their pressure strategy and, thus, to get undue mileage and advantage to hide and conceal their misdoings. This petition has been preferred as a forum shopping. It is submitted that they will produce necessary evidence when required and crave leave to refer to and rely upon the said or further evidence when produced and reserve right to make further reply and or representation. Heard the learned counsel appeared for the parties and perused the pleadings/documents filed in their supports. This Bench by an order dated 19th August, 2010 disposed of the very same petition and directed the respondent No. 1 -company to comply with the statutory requirements as contemplated under section 614(1) of the Act by filing the returns, documents as stated in para 6.1 of the petition within a period of 4 weeks from the receipt of copy of the above order. After passing the order, the respondents sought clarification to the above stated order and this Bench by an order dated 7th February, 2011 made it clear that no further clarification is required to the order dated 19th August, 2010 and hold that the same is final and binding on the parties. The respondents have preferred an appeal against the order of this Bench dated 7th February, 2011 before the hon'ble, High Court of Gujarat and the hon'ble High Court remanded the matter to this Bench and directed the Bench to dispose of the same within a period of 3 months from the receipt of copy of that order, by setting aside the order of this Bench dated 7th February, 2011. In due compliance of the directions, the CP has been fixed for hearing on 24th January, 2012 at 2.30 PM and directed the Bench Officer to send notices to the parties duly intimating the date and time of the hearing of the petition. The matter taken up for hearing as per the date fixed. However, the parties wanted to file further pleadings in the matter and as per their request the matter is adjourned to 14th February, 2012 at 2.30 PM by granting liberty to file pleadings. The parties have filed pleadings and the same has been marked as exhibits and made it clear to both the parties that no other pleadings/documents will be entertained or taken on record. The parties agreed to the same. The following pleadings along with the documents have been taken up for consideration to decide the petition. The petition is marked as Annexure I, the affidavit in reply to written statement filed by the petitioner dated 4th February, 2012 is marked as Annexure II and further affidavit by the petitioner dated 11th February, 2012 marked as Annexure m. The reply filed by the respondents dated 11th November, 2009 is marked as Annexure A and the affidavit by the respondents dated 4th February, 2012 is marked as Annexure B. No other applications are pending in the petition. Therefore, only the petition is taken up for hearing as per the directions of the High Court., After analysing the pleadings and documents, the only issue felt for consideration is to decide whether the petitioner is entitled to the reliefs as prayed in the petition. When the earlier order passed on 19th August, 2010, it was observed and noted that none appeared for the respondents in spite of intimation to the parties about the date of hearing. As such, on the basis of pleadings the matter was decided holding that the petitioner is a creditor of the R1 -company and entitled to issue direction to the company to enforce compliance of statutory requirements. The said order was purely on the basis of statement made by the petitioner in the affidavit. There was no representation on behalf of the respondents to rebut the same even though there was a denial in the reply. I am of the view that the said fact is a mistake in view of non -representation of the respondents and non -disclosure of the true facts by the petitioner. As per the Company Law Board Regulations, 1991 this Bench did not have the powers to review its own order, except rectifying a clerical mistake. The earlier order dated 19th August, 2010 is not a clerical mistake but a mistake on non appreciation of true facts. The stand of the petitioner is that he is a creditor of the R1 -company. However, except the statement made, no other documents have been produced by the petitioner to prove that he is a creditor. Moreover it is contended that the petitioner paid an amount of Rs. 75,00,000 by way of security deposit to the R1 -company pursuant to an memorandum of understanding ('MoU') for grant of licence to manage and operate the club facilities, food and beverages. The further averment of the petitioner is that the only requirement for grant of reliefs under section 614(1) is to serve a notice on the company requiring it to file the documents and make good the default within 14 days. It is contended that the petitioner served the notice dated 19th May, 2009 and the respondents did not comply the statutory requirements. It is also stated that to file an application before the CLB one should be a member, or creditor of the company and must give notice to the company. The respondents vehemently opposed to the grant of reliefs and categorically denied that the petitioner is a creditor of the company. It is contended that the petitioner has not furnished any single evidence to prove that he is a creditor of the company. It is also a fact that the petitioner has not established that he is a creditor of the company. The respondents along with their affidavit dated 4th February, 2012 enclosed MoU dated 24th August, 2007 between the respondents and the petitioner. On perusal of the MoU it is clear that the petitioner was referred to as operator and at clause 5 it clearly stated as "the operator shall deposit an amount of Rs. 75,00,000 towards the refundable security deposit". Further in clause 6 it is stated that the operator, i.e., the petitioner shall pay an amount of 20 per cent net commission on F & B business turnover, 30 per cent net commission on room sales turnover, 30 per cent net commission on party plot rental and other commission. From the plain reading of MoU it is clear that the petitioner is an operator of the hotel and the amount which the petitioner claims that he paid Rs. 75,00,000 to the respondents towards credit money is only a security deposit and nowhere it was mentioned that the petitioner is a creditor. Further, the petitioner himself in his affidavit dated 4th February, 2012 at para 8 of page 5 stated that the money paid by the petitioner to the respondents by way of deposit to run the club is money due to the petitioner and, thus, the petitioner is a creditor of respondent -company. Further, copy of audited balance sheet of petitioner as at 31st March, 2009 shows an amount of Rs. 75,00,000 under loans and advances (deposit) to the respondent -company. From the above pleadings of the petitioner it is an admitted fact that the petitioner given the said money towards security deposit. Further the petitioner was relied upon their balance sheet and not the balance sheet of the respondents. Mere reflecting the position of the respondents in the balance sheet of the petitioner is not binding on the respondent -company. There is a serious dispute with regard to the petitioner's status as creditor. The respondents vehemently opposed that the petitioner is not a creditor and he cannot issue a notice to the company and cannot seek directions to comply the statutory requirement from this Bench. On the other hand, the petitioner claims that he is a creditor. As stated supra, I am of the view that the petitioner has not established that he is a creditor to seek relief under section 614 of the Act. However, the said finding is not binding on the respondents in case the respondents owes any monies to the petitioner. In view of the serious dispute as to whether the petitioner is or not a creditor, this Bench will not go into the merits of the disputes and cannot decide about the petitioner is a creditor or not. The observations made in this order are exclusively applicable to the facts of this case only. Any observations against the petitioner, the respondents should not take any advantage of the same in matters of finances which is mentioned by the petitioner in this petition. Whatever conclusions drawn in this matter is only to decide that this Bench does not have the jurisdiction to decide the dispute with regard to the status of the creditor. Moreover this Bench expressed the opinion that there is no provision under the Act to decide the issue, whether the petitioner is a creditor or not. The Bench also sought assistance from the PCS to show the relevant provision of law whether this Bench can exercise the powers to decide whether the petitioner is a creditor or not. The PCS failed to show any provision of law. Now the relevant provision which the petitioner relying upon and sought indulgence of this Bench to exercise the same. The said provision of law is reproduced for better appreciation. Section 614(1) states that "if a company having made default in complying with any provision of this Act which requires it to file or register with, or deliver or send to, the Registrar any return, account or other documents, or to give notice to him of any matter, fails to make good the default within 14 days after the service of notice on the company requiring it to do so, the CLB may, on an application made to it by any member or creditor of the company or by the Registrar, make an order directing the company and any officer thereof to make good the default within such time as may be specified in the order". From the above provision of law it is clear that only member or creditor of the company or RoC, can make an application to the CLB and upon receipt of the same the CLB can direct the company and any officer thereof to make good the default. It is unequivocal that only member, creditor or Registrar can apply to the CLB if it is an admitted fact and there is no dispute whatsoever with regard to the status of creditor. In such cases only the CLB may direct the company to make good the default. As stated supra in the present case, there is a serious dispute with regard to the petitioner's eligibility to apply to the CLB in the capacity as creditor. Therefore, this Bench does not have the jurisdiction to decide whether the petitioner is a creditor or not. In view of the facts and reasons as stated above, the petition is miserably failed and liable to be dismissed. Hence, the same is dismissed. Accordingly, the directions of the hon'ble High Court of Gujarat is complied with.