High Court
Case Details
Co.Pet. 12/2010 BEFORE HON’BLE MR. JUSTICE HRISHIKESH ROY
Legal Reasoning
Heard Ms. S Kanungoe and Mr. D Mazumdar, learned counsel for the petitioner Comp any and Mr. R Dubey, learned counsel representing the respondent Company. Mr. PK Kalita, learned counsel is appearing for the intervener, the Punjab National Ba nk (respondent No.2). This is a winding up petition under Section 433, 434 & 439 of the Compan 2. ies Act, 1956 (hereinafter referred to as the ’Companies Act’) which was present ed on 21.12.2010. After notice the parties exchanged their pleadings. The respon dent No.2 appeared in the case in pursuant to the advertisement of the Company P etition dated 22.6.2012 by filing an intervener application i.e. Misc. Case No.2 478/2012, which was duly allowed on 24.09.2012 by the Court. 3. This Court after hearing the parties, directed the petitioner to adverti se of the company petition in two local dailies. The petition was accordingly ad vertised in the Assam Tribune and the Asomiya Pratidin on 22.6.2012. The petitio ner Company by filing an affidavit on 26.6.2012 has placed on record, the copies of advertisement(s) published in the aforesaid two local newspapers. 4. The claim of the petitioner Company arises out of supply of TMT steel to the respondent Company for its project at NBCC, Moti Bagh, New Delhi. The respo ndent Company paid the consideration vide three cheques viz, Cheque No.877056 da ted 07.01.2010 drawn on Punjab National Bank for an amount of Rs.11,81,516/-; Ch eque No.156885 dated 01.02.2010 drawn on HDFC Bank for Rs.11,04,967/- and Cheque No.156886 dated 10.02.2010 drawn on HDFC Bank for Rs.36,07,348/-, totaling Rs.5 8,93,831/- against the supplies made by the petitioner Company. But upon present ation, the cheques were dishonoured by the Bank(s) due to insufficient fund in t he account of the respondent Company. 5. As the payments were not received in spite of repeated demands, the peti tioner’s Company duly served statutory notice dated 16.09.2012 (Annexure-II) for payment of Rs.58,93,831/-. Though the respondent Company received the said noti ce, they failed to make the demanded payment. Now in the affidavit-in-opposition filed on 06.06.2011 before this Court, the respondent Company with a view to ra ise a dispute has alleged that, the petitioner Company supplied only 83.00 MT of steel to the respondent Company that too, after expiry of prescribed time perio d. 6. Ms. S Kanungoe drew the attention of this Court to the petition and its annexure and also the affidavit-in-opposition to argue that the respondent Compa ny only in order to avoid the liability of the admitted dues to the petitioner C ompany is disputing the claim. Further she submits that the petitioner Company d uly supplied the ordered TMT steel and in terms of agreement, the respondent Com pany duly received the same on time. She contends that after the cheques were di shonoured, the petitioner had issued statutory notice to the respondent Company but the respondent Company hasn’t raised any objection to the notice. Therefore she submits that the present winding up petition should be granted since the res pondent Company is neither able to pay its debt nor it has not raised any bona f ide dispute, to the claim of the petitioner Company. 7. Mr. R Dubey, learned counsel for the respondent Company submits that the petitioner Company had supplied only 83.00 MT of steel which is lesser than the ordered quantity and that too, after expiry of prescribed time. In so far the 3 dishonoured cheque(s), he submits that the same were in nature of advance payme nt and encashment of those cheques were contingent upon satisfactory supply and since delivery were delayed and the materials were not of agreed quantity the du es can’t be claimed. Therefore he contends that the Company raised a bona fide d ispute to the claim of the petitioner and the winding up petition is an abuse of the process of the Court and should be dismissed. 8. Having regard to above and from the conduct of the respondent Company, t his Court is satisfied that the respondent Company is trying to raise a frivolou s and non bona fide dispute since the materials were duly accepted by the respon dent Company without any objection. Furthermore, at no earlier stage, the respon dent Company had raised any objection on the quality of the supplied materials o r had claimed that supplies were delayed. 9. The Managing Director of the respondent Company filed an affidavit on 27 .9.2011 saying that they are facing acute financial crisis and apart from the li ability owed to the petitioner Company, they have several others sundry creditor s involving huge amounts. Further the deponent offered to pay 15% of the admitte d dues to the petitioner Company in the 1st week of January, 2012 and the remain ing dues in eight instalments starting from March, 2012. Since the respondent Co mpany did not specify the precise amount admitted by them, on query posed by thi s Court, Ms. Kanungoe submits that the principal admittedly owed by the responde nt Company is Rs.58,93,831/-. However the respondent Company did not specify the precise amount admitted by them. In the meantime the respondent Company replace d their earlier set of counsel in the proceeding. From above, it is clear that the respondent No.1 Company is unable to pa 10. y its debts, which admittedly is above Rs.1,00,000/-. In view of this, I feel th at this petition deserves to be allowed since such winding up petition can be or dered for default in payment of admitted dues above Rs.1 lakh, under Section 433 & 434 of the Companies Act. 11. Mr. PK Kalita, the learned counsel for the respondent No.2 submits that the Punjab National Bank is a secured creditor and therefore the rights of the s ecured creditor should be protected. Further he submits that the Official Liquid ator has already been appointed by this Court by an order dated 06.06.2012 passe d in the parallel Company Petition No.8/2010 (M/s. Lafarge Aggregates & Concrete India Pvs. Ltd. vs. Ms. Double Dee Construction Pvt. Ltd.) and accordingly the Bank appeared before the Official Liquidator, in pursuant to notice dated 05.07. 2012 of the Official Liquidator. 12. In the above circumstances I hold that defence put up by the respondent Company is not bona fide since it failed to pay its debt and also neglected to p ay the same in spite of repeated demands by the petitioner Company. It is theref ore liable to be wound up. The respondent Company accordingly be wound up and th e Official Liquidator is consequentially directed to take immediate possession o f the assets and properties of the respondent No.1 Company. 13. Let this Registrar General inform the Official Liquidator under Rule 109 of the Company (Court) Rules, 1959 in Form 50 and draw up necessary orders unde r Rule 111 in Form 52 of the Company (Court) Rules, 1959. 14. The petitioner Company is directed to take steps to advertise the order for winding up of the respondent Company by the Company Court in Form 53 under R ule 113 of the Company (Court) Rules, 1959. The advertisement be published in th e Assam Tribune and the Asomiya Pratidin. 15. The Company Petition is allowed with the above orders.