Companies Act 1956 - Section 433 - Winding up - disputes over unpaid rent - time of handing over possession of premises highly disputed whether petition to be admitted – Held, No.Brief facts :
The Petitioner gave on rent the ground floor of the property (rented premises) to the Respondent w.e.f. 1st May, 2010 on a monthly rent of Rs. 4,25,000/-. Respondent defaulted in paying rent from 1st May, 2010 and on continuous reminders, till September, 2011, Respondent paid only Rs. 49,72,500/- (exclusive of TDS) as against the total outstanding rent of Rs.72,25,000 (exclusive of service tax).
Petitioner sent an e-mail to the Respondent on 26th September, 2011 demanding the outstanding rent and arrears of service tax enclosing an account statement since the date of renting the premise. In accordance to this reminder, Respondent paid the service tax amount without interest upto date without making the payment of arrears of rent and agreed to make the dues when the Petitioner representative met the Respondent representative.
Thereafter, Petitioner filed the present petition before Delhi High Court (Court) seeking the winding up of the Respondent when there was no reply for the statutory notice issued on 14th May, 2012 under section 434 of the Companies Act, 1956.Decision : Petition dismissed. Reason :
Respondent is on the stand that the possession of premises were handed over to it only in December, 2010 instead of May 2010 which raises a disputed question of fact which can not be decided by the court as there was no proper document provided by the parties as evidence.
In the above circumstances this court is not satisfied and unable to give conclusion at this stage that the defence of the Respondent is sham, false or mala fide on the basis of the documents placed on record by the Petitioner.
The Court recalls the observation in NEPC India Ltd. V. Indian Airlines Ltd. (2003) 2 Comp. LJ 122 to the effect that the machinery of winding up should not be allowed to be utilised merely as a means of realizing its debts and was under the suggestion for the parties to seek the remedy under the arbitration agreement
On the basis of above discussions, the Court declines to entertain the present petition and dismissed it. However, it would be open to the Petitioner to seek other appropriate remedies that may be available to it in accordance with law.