(Prayer: Petition filed under Sections 433 (e), (f) and 434 (1) (a) and Section 439 (1) (b) of the Companies Act for winding up the respondent company.)
1. This petition has been filed by the petitioner for winding up of the respondent company on the ground of inability to pay its debts.
2. The respondent company carries on business of drug discovery research, clinical research, clinical data management, bio-equivalence studies, quality control, novel drug delivery system, pre-clinical research studies and research in bio-technology. The respondent company was incorporated on 25.7.07 with authorized share capital of Rs.2,00,00000/= (Rupees Two Crore only) divided into 20,00,000 (Twenty Lakhs) equity share of Rs.10/- (Rupees Ten only) each.
3. The petitioner company had purchased four floors, viz., 4th to 7th floor, of the premises at 149, Velachery-Tambaram Main Road, Pallikaranai, Chennai, viz., 'Robert V Chandran Tower'.
4. The petitioner and the respondent entered into a lease agreement dated 15.12.08 for lease of the 5th floor of the abovesaid premises on a monthly rent of Rs.10,00,000/= (Rupees Ten Lakhs only) together with security deposit of Rs.1,00,00,000/= (Rupees One Crore only). There are other terms and conditions in the lease deed, which is annexed to the petition, which is not in dispute. It is the case of the petitioner that the respondent defaulted in paying the rent right from the beginning of the lease period. The rent was paid, according to the petitioner, from February, 2009 to June, 2009. But, however, there was a default of rent in part for the month of January. From August, 2009, it is the case of the petitioner that the respondent stopped paying rents and there was a demand on the respondent to pay the rent and the same remains unpaid till the date of this petition. On 11.12.09, the petitioner company issued legal notice (Annexure-3) intimating the failure of the respondent to pay the rent. It appears that the respondent issued two cheques, which were dishonoured on account of 'stop payment' instructions for which action has been initiated under Section 138 of the Negotiable Instruments Act before the competent court. On 19.5.10 another notice (Annexure-7) was issued demanding payment followed by the statutory notice (Annexure-8) under Section 434 of the Companies Act, which was issued on 3.9.10, calling upon the respondent to pay the rent and other charges admittedly due to the petitioner. Since the respondent did not respond to the statutory notice, the present petition has been filed stating that the respondent company is indebted to the petitioner in a sum of Rs.1,83,07,476/= (Rupees One Crore Eighty Three Lakhs Seven Thousand Four Hundred and Seventy Six only) as on 8.11.10 (Annedure – 10 tabulation) in terms of the agreement dated 15.12.08 and since the respondent company is unable to pay its dues, the company should be wound up.
5. Notice was issued by this Court and the case was admitted on 15.6.12 by appointment of Provisional Liquidator. Thereafter, on 12.9.12, this Court set aside the exparte order and the Provisional Liquidator was discharged.
6. Counter has been filed by the respondent disputing each and every fact raised by the petitioner along with certain documents. The respondent relies upon an e-mail dated 11.12.08 in and by which request was made to issue a letter of undertaking and that correspondence resulted in the letter of undertaking dated 12.12.08, which reads as follows :-
'We have agreed to rent 5th floor of RV Chandran Towers Building belongs to Calsoft Management to Raxaane Research Pvt Ltd., for clinical research/bioequivalence research/biotechnology projects for the period of six years.
We assure you that we will provide the following certificates which are mandatory to obtain licenses and certificates from various regulatory approval bodies and also from Health Department/Drugs Controller Departments.
In this regard we herewith undertake to provide the following certificates within a period of three months from the date of rental agreement :-
1) Building Completion Certificate CMDA of Building
2) Fire and rescue certificate
3) Blur print of 5th floor building
4) Pollution Control Board Certificate of the Building
5) Health Department Certificate of the Building.'
7. According to the respondent, the five documents contained therein have not been furnished to the respondent and the petitioner has misled the respondent by not obtaining the approvals/licences as agreed by it. Further the petitioner is holding the sum of Rs.1,00,00,000/= (Rupees One Crore only) being the refundable rental deposit of the respondent and the amount claimed by the respondent is clearly disputed and it requires adjudication by appointment of arbitrator as per clause 3.9 of the lease deed. The present petition has been filed by the petitioner with the mala fide intention and as pressure tactics.
8. Thereafter, on 3.3.09, an e-mail was sent by Ms.Sheila Ganesh of the respondent company to Mr.Naveen of the petitioner company calling upon them to furnish the documents referred to in the undertaking dated 12.12.08. Another reminder was also sent by Ms.Sheila Ganesh to the respondent to Mr.Naveen of the petitioner company, which is extracted hereinbelow :-
This is with regard to the forwarded mails :
I remind you on 25.03.09 Mr.Gopinath, Roxaane had approached you in that regard.
1. Document No.2 – Fire and rescue certificate of Calsoft for the current year – which you have committed to provide within a week.
2. Document No.4 – Pollution Control Board Certificate of Calsoft for the current year – which was under process, the same was agreed by you to be given later – kindly let us know its status.
3. Document No.5 – Health Department Certificate of Calsoft of the current year – let us know its status.
Kindly consider our need to start initial operations for obtain license and help us by providing the documents mentioned above at the earliest.'
9. The respondent clearly intimated the need for submitting those documents to start operation of the respondent company in the above stated building leased out by the petitioner. One Mr.Jayaraj of the petitioner company, sent an e-mail reply on 20.4.09 stating that the issuance of fire and rescue certificate is in process and is expected in time and so far as pollution and health certificate is concerned, it is not required mandatory for IT Park buildings and if the respondent needs, they may apply for the same. This was replied on 21.4.09 by Ms.Sheila Ganesh of the respondent company to Mr.Jayaraj of the petitioner company clearly expressing their displeasure on being informed that the building in lease is considered to be an IT Park, which is not suitable for use of the respondent as a research facility and consequent damage and loss that will cause the business of the respondent. Thereafter, on 12.5.09, reply was sent by one Mr.Ramesh of the petitioner company to Ms.Sheila Ganesh of the respondent company enclosing certain documents like CMDA building completion certificate, fire and rescue certificate of the current period, and the blue print of Calsoft 5th floor and further informing that renewal certificate is expected in a week's time and the same will be provided on its receipt. So far as pollution and health certificate is concerned, it was informed that the petitioner will assist the respondent in obtaining the certificate. This, according to the respondent, is contrary to the letter of undertaking, where they have clearly stated that the five certificates mentioned therein will be obtained by the landlord, i.e., the petitioner. It is the case of the respondent that in view of the non-furnishing of the certificates, the building could not be utilised for the purpose for which it was taken on rent and the business of the company was not operational. On the hope that the petitioner will supply all the documents, rents were paid up to June, 2009. Further correspondences clearly show that the petitioner had not taken steps to get the relevant documents for the purpose of enabling the respondent to continue business. This clearly shows that the lease agreement had not been given effect to in its proper form at the behest of the petitioner and, therefore, if there is any dispute, they will have to fall back on the arbitration clause mentioned in the lease agreement and it is not a case for winding up of the company where there is a serious dispute as to the utilisation of the building consequent to the lease agreement of the year December, 2008. The respondent further states that non-response to the statutory notice was due to the fact that the company had to shut down due to non-availability of relevant certificates and further electricity was disconnected and, therefore, they did not receive the communication, for which the respondent cannot be faulted with.
10. Heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondent.
11. Having considered the above plea, the series of disputes that have been going on between the parties right from the beginning of the agreement, the e-mail correspondences clearly show that there are certain documents, which were undertaken to be furnished, but the petitioner had failed to obtain the sa
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me and hand over it to the respondent even as on May, 2009. Further, it is clear from the materials placed on record, the respondent has been paying rents upto June, 2009 even without there being proper certification as undertaken to be obtained by the petitioner. This is a matter where there is a serious dispute, which cannot be agitated under Section 433 (e) of the Companies Act. No case has been made out by the petitioner to show that the respondent is unable to pay its debts. Even otherwise, there is a deposit of Rs.1,00,00,000/= (Rupees One Crore only) which has been paid to the petitioner under the lease agreement and that rental payments have also been made for a building which has not been put to use. Therefore, this Court is of the considered view that no case has been made to attract the provisions of Section 433 (e) of the Companies Act and the petitioner has miserably failed to show that the respondent is unable to pay its debts. 12. For the reasons stated above, this company petition is devoid of merits and the same is dismissed.