2010 (12) TMI 1058 - HC - Companies Law

Winding up - Circumstances in which a company may be wound up - Held that - A petition for winding up with an aim of coercing payment of a disputed debt is an abuse of the process of court. The defence raised in the present case is substantial. Thus the present petition for winding up is not admitted and is dismissed. The observations and findings made above are for the disposal of the present winding up petition and will not prejudice any litigation inter se parties.

Summary

Issues Involved:
1. Inability to pay debt under Section 433(e) and presumption under Section 434(1)(a) of the Companies Act, 1956.
2. Disputed debt and alleged arm-twisting tactics.
3. Agreement terms and conditions, including development timelines and payment schedules.
4. Development and completion of the specified product.
5. Allegations of misuse and illegal trading of developed products.
6. Negotiations and settlement attempts through e-mails.
7. Legal principles concerning winding up petitions based on disputed debts.

Detailed Analysis:

1. Inability to Pay Debt under Section 433(e) and Presumption under Section 434(1)(a) of the Companies Act, 1956:
The petitioner, RPGCL, sought the winding up of the respondent-company on the grounds of inability to pay debt under Section 433(e), invoking the presumption under Section 434(1)(a) of the Companies Act, 1956. The claim was based on the respondent-company's failure to pay the undisputed/admitted debt despite the statutory notice dated 21-1-2008.

2. Disputed Debt and Alleged Arm-Twisting Tactics:
The respondent-company defended the proceedings by asserting that the debt claimed was not due but disputed, arguing that the winding up petition was an arm-twisting tactic. They also alleged that the petitioner had not approached the court with clean hands.

3. Agreement Terms and Conditions, Including Development Timelines and Payment Schedules:
Both parties acknowledged an Agreement dated 15-12-2002, under which RPGCL paid Rs. 4.73 crores to the respondent-company. The Agreement required the respondent to develop specified equipment and software, transferring rights to RPGCL for manufacturing. RPGCL cited clause 2 of Article XIII and Schedule II of the Agreement, arguing that the respondent failed to meet the development timelines, thereby entitling RPGCL to a refund with interest.

4. Development and Completion of the Specified Product:
The respondent-company contended that delays in RPGCL's payments impacted the timely development of the product. They claimed to have developed the first prototype CoT broadband router, complying with the Agreement, supported by a congratulatory letter from RPGCL dated 26-7-2004. However, RPGCL argued that the final product was never developed as required.

5. Allegations of Misuse and Illegal Trading of Developed Products:
RPGCL alleged in the petition that the respondent-company had developed some products and illegally traded them under its own brand name, diverting funds invested by RPGCL. This was seen as a clear distinction between the products not being developed and the technology and rights not being transferred to RPGCL as per the Agreement.

6. Negotiations and Settlement Attempts Through E-mails:
E-mails exchanged between October 2006 and September 2007 indicated attempts to negotiate a settlement, including converting part of RPGCL's investment into equity and refunding Rs. 1 crore. However, no formal agreement was signed, and RPGCL's claim remained for the refund of Rs. 4.73 crores with interest, not based on the e-mail negotiations.

7. Legal Principles Concerning Winding Up Petitions Based on Disputed Debts:
The court referred to established legal principles that if a debt is bona fide disputed and the defence is substantial, the court will not wind up the company. The Supreme Court's decisions in Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. and Mediquip Systems (P.) Ltd. v. Proxima Medical System GMBH were cited, emphasizing that winding up petitions should not be used to coerce payment of disputed debts.

Conclusion:
The court found that the defence raised by the respondent-company was substantial and not merely a sham. The issues involved were contentious and required a full trial rather than summary proceedings. Consequently, the petition for winding up was dismissed, with the court noting that the observations made were specific to the winding up petition and would not prejudice any further litigation between the parties. No costs were awarded.