1997 (5) TMI 350 - HC - Companies Law

Issues Involved:
1. Indebtedness of the company to the petitioners.
2. Financial soundness of the company.
3. Bona fide dispute of the debt.
4. Applicability of Section 433(e) of the Companies Act, 1956.
5. Requirement for winding up the company.
6. Provision of bank guarantee by the company.

Issue-wise Detailed Analysis:

1. Indebtedness of the company to the petitioners:
The petitions were filed under sections 433, 434, and 439 of the Companies Act, 1956, by creditors seeking to wind up Trend Designs Ltd. due to alleged debts. In C.P. No. 9 of 1996, the petitioner claimed the company owed Rs. 2,68,466.70 for computerised embroidery work. In C.P. No. 10 of 1996, the claim was Rs. 10,14,628.20 for similar services. The petitioners alleged that despite raising invoices and delivering goods, the company failed to pay the outstanding amounts, and even a cheque issued by the company was dishonoured.

2. Financial soundness of the company:
The company disputed the liability and claimed financial soundness, asserting it could meet its financial commitments. The company alleged that the petitioners did not supply materials on time, causing a loss of Rs. 35 lakhs due to delayed shipments. The company provided documents showing a sound financial position, including balance sheets and profit and loss accounts for the years ending 31-3-1995 and 31-3-1996, indicating significant net profits and current assets.

3. Bona fide dispute of the debt:
The company's counter affidavit disputed the liability and raised a counterclaim of Rs. 35 lakhs for losses incurred due to the petitioners' delayed supply. The court noted that if the debt is bona fide disputed and the defense is substantial, a winding-up order would not be granted. The court found that the company's defense was genuine and bona fide, with prima facie proof supporting the dispute.

4. Applicability of Section 433(e) of the Companies Act, 1956:
Section 433(e) allows for winding up if a company is unable to pay its debts. Section 434(1)(a) deems a company unable to pay its debts if it neglects to pay a demanded sum within three weeks. The court examined whether the company's financial position indicated an inability to pay its debts. The court found that the company's financial statements showed it was commercially solvent and capable of meeting its liabilities.

5. Requirement for winding up the company:
The court referred to precedents, including the Supreme Court's decision in Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd, which established that a winding-up petition would not be granted if the debt is bona fide disputed and the company's defense is substantial. The court concluded that the company's defense was in good faith and likely to succeed in law, with prima facie proof of the facts supporting the defense.

6. Provision of bank guarantee by the company:
Despite rejecting the winding-up petitions, the court acknowledged the petitioners' apprehension about the company's ability to meet its liabilities. The court directed the company to provide a bank guarantee for the amounts claimed (Rs. 2,68,466.70 in C.P. No. 9 of 1996 and Rs. 10,14,628.20 in C.P. No. 10 of 1996) within four weeks. The bank guarantee would be valid for two years, allowing the petitioners to enforce it if they substantiated their claims in appropriate proceedings.

Conclusion:
The petitions for winding up Trend Designs Ltd. were rejected as the court found the company's defense to be bona fide and substantial, with the company being financially sound and capable of meeting its liabilities. However, the company was directed to provide a bank guarantee for the disputed amounts to address the petitioners' concerns.

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