1999 (2) TMI 494 - HC - Companies Law

Summary

Issues Involved:
1. Petition for winding-up under section 433(e) and (f) read with section 439(b) of the Companies Act, 1956.
2. Alleged failure to pay debts by the respondent-company.
3. Dispute over the quality of goods supplied and alleged agreement for discount.
4. Bona fide nature of the dispute raised by the respondent.
5. Impact of ongoing civil suits on the winding-up petition.
6. Financial stability and operational status of the respondent-company.

Detailed Analysis:

1. Petition for Winding-Up:
By means of this company petition, the petitioner sought the winding-up of the respondent-company under section 433(e) and (f) read with section 439(b) of the Companies Act, 1956, on the ground that the respondent-company failed to pay its debts despite the receipt of the statutory notice, hence, it deserves to be wound up.

2. Alleged Failure to Pay Debts:
The petitioner, a Government company engaged in the manufacture and sale of newsprint, claimed that the respondent-company defaulted in paying a total amount of Rs. 2,43,58,920 for supplies made between 19-10-1992 to 11-6-1993. Despite repeated requests and a registered notice of demand served on 16-5-1994, the respondent failed to make the payment.

3. Dispute Over Quality of Goods and Alleged Agreement for Discount:
The respondent-company, in its counter affidavit, denied the amount claimed and alleged that the newsprint supplied was sub-standard and rejected material. It claimed an agreement for a 40% discount on the bill amount due to the sub-standard quality, which the petitioner denied. The petitioner argued that this defense was an afterthought and concocted only after receiving the legal notice.

4. Bona Fide Nature of the Dispute:
The Court examined whether the dispute raised by the respondent was bona fide. It was noted that the respondent had admitted the outstanding amount in a statement of account dated 18-9-1993 and had not raised any issue regarding the quality or discount in its earlier communications. The Court found the defense to be an afterthought and not bona fide, as the respondent had not raised any complaints about the quality of the newsprint or the alleged discount agreement until the legal notice was served.

5. Impact of Ongoing Civil Suits:
The respondent argued that the winding-up petition should be dismissed or kept in abeyance due to ongoing civil suits between the parties. However, the Court held that the institution of a suit for the realization of dues does not invalidate the winding-up proceedings, as the winding-up petition serves the interests of all shareholders, creditors, or contributories.

6. Financial Stability and Operational Status:
The respondent-company contended that it was financially stable and operational, employing a large number of officers, workmen, and staff. The Court acknowledged this but emphasized that the respondent's ability to pay the amount was irrelevant if it chose not to pay. The Court concluded that the respondent had failed to satisfy the three tests laid down by the Supreme Court in the case of Madhusudandas Gordhandas & Co., namely, that the defense was in good faith, substantial, and likely to succeed in a point of law.

Conclusion:
The Court concluded that the respondent-company's defense was not bona fide and that a case for winding-up was made out. However, considering the respondent's operational status and the livelihood of its employees, the Court provided an opportunity for the respondent to pay off its debts in three equal installments. Failure to comply with this order would result in the winding-up of the respondent-company.