Hari Om Tempanes v. Southern Aluminium And Glazing Industrial Pvt. Ltd.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL (L) NO. 416 OF 2016 IN COMPANY PETITION NO. 601 OF 2014 M/s. Monic Glass Centre ...Appellant

Versus

Instawall Aluminium Private Ltd.

...Respondent

APPEAL (L) NO. 417 OF 2016 IN COMPANY PETITION NO. 602 OF 2014 M/s. Balsurya Mirror Ltd.

...Appellant

Versus

Instawall Aluminium Private Ltd.

...Respondent

APPEAL (L) NO. 418 OF 2016 IN COMPANY PETITION NO. 600 OF 2014 Hari Om Tempanes ...Appellant

Versus

Southern Aluminium and Glazing Industrial Pvt. Ltd.

...Respondent

Mr. Nitesh Vishwanath Bhutekar, for the Appellants in all Appeals. Mr. S. Shamim i/b. M/s. Shamim and Co. for the Respondents in all Appeals.

CORAM:

B.R. GAVAI & RIYAZ I. CHAGLA, JJ.

DATE:

11TH DECEMBER, 2018.

J U D G M E N T :- (Per Riyaz I. Chagla J.) 1.

The above two Appeals (Appeals (L) No. 416 and 417 of 2016) challenge orders dated 23rd August, 2016 and the third Appeal (Appeal (L) No. 418 of 2016) challenges order dated 22nd August, 2016 passed by the learned Company Judge of this Court 1/6

dismissing the Company Petitions filed by the respective Appellants for winding up of the respective companies on the ground that the Respondent companies are unable to pay its debts as and when they arise in the usual course of its business. 2.

The Appellants are carrying on the business of sale of glass and glass material. The Respondents are also in the same business. The Respondent Companies are stated to have placed orders with the Appellants for supply of the requisite material. It is the case of the Appellants that the Respondent companies failed to make payment for the quantities of glass supplied and for which various invoices were raised. It appears that the Respondent companies had issued cheques in blank or given as security to the Appellants in good faith and this is refuted by the Appellants who claim that these cheques were dated and issued in their names and when they were presented for payment, the cheques were dishonoured.

The Company Petitions filed by the Appellants proceed on the basis of the claim due at the end of the ledger account and not on the basis of the failure to pay the amounts of the cheques which were dishonoured. The Appellants have neither filed any complaint nor any Suit under Negotiable Instrument for the dishonour of the cheques issued by the Respondent Companies.

material on record gave a finding that the Appellants / Petitioners case of inability on the part of the Respondent companies to pay its debts is not believable. The learned Company Judge has given a considered finding based on the material on record that there were several discrepancies in the facts presented by the Appellants in the Company Petitions filed by them. The learned Company Judge has after observing that the Appellants have not filed any complaint and / or Suit under the Negotiable Instrument Act for the alleged dishonour of the cheques has held that the claim of the Appellant's is based on manipulated accounts. The learned Company Judge has accordingly dismissed the Company Petitions. Hence, these Appeals arise from the impugned orders. 3.

Mr. Nitesh Bhutekar, the learned counsel appearing for the Appellants in all the three Appeals has submitted that there is no dispute as to the Appellants having supplied quantities of glass to the Respondent Companies and for which the invoices had been raised. He has submitted that it is an admitted fact that the cheques were issued to the Appellants by the Respondent Companies. He submits that the cheques upon been presented were dishonoured. He submits that there was a running ledger account and from which it is apparent that sums were due from the Respondent Companies to the Appellants and that the 3/6

Respondent Companies have failed to meet the dues of the Appellants. He has submitted that the learned Company Judge has incorrectly found that there were discrepancies in the material on record and that the Petitioners case was not believable. He has submitted that the learned Company Judge has erroneously dismissed the Company Petitions upon finding that the Appellants had not filed any complaint and / or Suit under the Negotiable Instrument Act for dishonour of the cheques. He has submitted that the learned Company Judge has failed to consider that although no action was taken by the Appellants under the Negotiable Instrument Act, there were debts due by the Respondent Companies to the Appellants as reflected in the ledger account.

He has further submitted that the mere non-filing of the complaint under Section 138 of the Negotiable Instrument Act cannot mean that the proceedings under Section 434 under the Companies Act, 1956 are not maintainable. He has submitted that the Respondent Companies had failed to provide documentary evidence to show that the entire sum due and payable to the Appellants have been paid. He has according submitted that the Company Petitions should not have been dismissed by the learned Company Judge.

4/6

4.

We have considered the submissions. We find no infirmity in the impugned orders passed by the learned Company Judge. The learned Company Judge has arrived at a finding from the material on record that there were several discrepancies in the case of the Appellants, particularly with regard to the alleged liability of the Respondent Companies, which made the Appellants case not believable. The learned Company Judge has found the Appellants claim to be based on manipulated accounts. The claim being for sums due at the foot of the ledger account and not for dishonour of cheques. The learned Judge has considered the cheques issued by the Respondent Companies, to be blank or given as security. The Appellants, despite these cheques being given in good faith, deposited these cheques which were dishonoured.

The learned Company Judge has observed that neither any complaint nor a Suit is filed under the Negotiable Instruments Act, for the dishonour of these cheques. Thus showing the falsity of the Appellants claim. We are of the view that there is no perversity in the findings on facts by the learned Company Judge to conclude that no liability of the Appellants could be said to have been admitted so as to warrant admission of these Company Petitions.

from the Appellate Court. We are of the considered view that these Appeals have no merit and are thus dismissed. (RIYAZ I. CHAGLA J.) ( B.R. GAVAI, J.) 6/6