2014 (4) TMI 1180 - HC - Indian Laws

Winding up petition - respondent company has failed and neglected to pay a sum of ₹ 2,20,320/- along with interest, due and payable to the petitioner and is thus, unable to pay its debts - Held that - This is a case where the respondent has attempted to create a dispute only to avoid making payment to the petitioner. Shorn of the illusion that is sought to be created by the respondent by the abovementioned disputed letters, the indisputable facts are (a) that the petitioner placed an order for the machine, (b) the petitioner was obliged to pay 10% in advance and the balance 90% on dispatch of the machine, (c) that the respondent received the machine but has failed to pay the consideration for the same. The contention that since the machine had not been installed by the petitioner, the respondent is not liable to pay for the same, also cannot be accepted in view of the fact that the respondent was obliged to pay the consideration of the machine on dispatch and the question of installing the same would only arise after the payment had been effected. In the instant case, the respondent has failed to make the payment as the cheque had not been honoured on presentation. The obligation of the respondent was to pay the entire consideration and on non-realization of the cheque the respondent was obliged to replace the same or remit the consideration through other means. However, it is apparent from the facts of the case that the respondent has deliberately avoided making payment to the petitioner. And, in absence of receiving the entire consideration, the petitioner was not liable to install the machine in question. The disputes raised by the respondent are a mere ruse to avoid paying the amount due to the petitioner. In this view, the respondent is deemed to be unable to pay its debts on account of its failure to discharge the debt owed to the petitioner. In view of the above, the present petition is admitted. The petitioner is directed to publish the citation in Statesman (English) and Jansatta (Hindi). The citation be also published in Delhi Gazette for hearing to be held on 17.07.2014.The Official Liquidator is appointed as a Provisional Liquidator to take charge of the assets and books of accounts of the respondent company.

Summary

Issues Involved:
1. Petition for winding up of the respondent company under Sections 433(e), 434(1)(a), and 439 of the Companies Act, 1956.
2. Non-payment of the sum of Rs. 2,20,320/- along with interest by the respondent.
3. Dispute over the dishonored cheque and its replacement.
4. Alleged delay in supply and installation of machinery by the petitioner.
5. Determination of whether the respondent's defense is bona fide or a sham.

Detailed Analysis:

1. Petition for Winding Up:
The petitioner filed a petition under Sections 433(e), 434(1)(a), and 439 of the Companies Act, 1956, seeking the winding up of the respondent company due to its failure to pay a sum of Rs. 2,20,320/- along with interest. The petitioner argued that the respondent company is unable to pay its debts.

2. Non-Payment of Sum:
The respondent had issued a cheque for Rs. 2,20,320/-, which was dishonored by the drawee bank and misplaced during its transmission. The respondent declined to replace the cheque and contended that it is no longer liable to pay the amount to the petitioner. The court needed to determine if the respondent's defense was bona fide or merely a sham.

3. Dishonored Cheque:
The petitioner informed the respondent through emails dated 08.08.2011 and 03.10.2011 that the machine was ready for dispatch and requested the balance payment. The machine was delivered on 01.12.2011, and the respondent issued a cheque dated 29.08.2011. The cheque was dishonored on 03.12.2011 with the remark "Instrument Mutilated, required bank confirmation." The petitioner claimed continuous communication with the respondent for cheque replacement, which the respondent failed to do.

4. Alleged Delay in Supply and Installation:
The respondent argued a delay of 4 months and 17 days in the supply of the machine and non-compliance with the terms of the purchase order. The court found that the respondent's contention of delay was erroneous and not sustainable. The respondent received the machine without protest, and the petitioner had informed the respondent about the machine's readiness for dispatch in a timely manner.

5. Determination of Bona Fide Defense:
The court examined whether the respondent's defense was genuine or an attempt to avoid payment. The court found that the respondent's defense was dishonest and a sham. The respondent had placed an order, received the machine, and issued a cheque for the balance payment, which was dishonored. The respondent failed to replace the cheque or make the payment through other means, indicating an attempt to avoid payment.

Conclusion:
The court concluded that the respondent's disputes were a mere ruse to avoid paying the amount due to the petitioner. The respondent is deemed unable to pay its debts. The petition was admitted, and the court directed the publication of the citation and appointed the Official Liquidator as a Provisional Liquidator to take charge of the respondent company's assets and books of accounts. The court allowed a two-week period for the respondent to settle the amounts payable to the petitioner before implementing the directions for publication and appointment of the Official Liquidator.

Final Orders:
- The petition was admitted.
- Citation to be published in "Statesman" (English) and "Jansatta" (Hindi) and in the Delhi Gazette.
- Official Liquidator appointed as Provisional Liquidator.
- Directors to file the Statement of Affairs within 21 days.
- Managing Director to file an affidavit with details of all offices, directors, and bank accounts.
- Directions for publication and appointment of the Official Liquidator to be deferred for two weeks to allow for settlement between the parties.
- Case renotified for 17.07.2014.