1990 (5) TMI 241 - HC - Companies Law

Summary

Issues Involved:
1. Appointment of a provisional liquidator.
2. Maintainability of the main company petition.
3. Amendment of the company petition.
4. Bona fide claim of dispute regarding payment.

Summary:

Appointment of a Provisional Liquidator:
Tube filed CA No. 606 of 1989 for the appointment of a provisional liquidator, which was allowed on 12-9-1989, appointing the official liquidator of the Court. Rim challenged this in OSA No. 301 of 1989, and the Division Bench granted a conditional stay on 5-10-1989, which Rim failed to comply with, resulting in the vacation of the interim stay.

Maintainability of the Main Company Petition:
Rim argued against the maintainability of the main company petition, which was filed u/s 433(e) and (f) of the Companies Act, 1956. The Court noted that the petition was primarily based on Rim's alleged inability to pay its debts to Tube, invoking the presumption u/s 434(1). However, the Court found that Rim had raised a bona fide dispute regarding the amount due, which required reconciliation of accounts.

Amendment of the Company Petition:
Tube sought to amend the company petition by adding paragraphs about Rim's admission of liability and other factual situations for winding up under the just and equitable clause u/s 433(f). The Court dismissed this amendment application, stating that it was filed due to oversight and would cause prejudice to Rim by changing the entire complexion of the proceedings.

Bona Fide Claim of Dispute Regarding Payment:
The Court found that Rim had consistently disputed the amount claimed by Tube, including payments made, defective goods, and the agreed interest rate. The correspondence between the parties indicated a bona fide dispute. The Court referred to principles established in previous cases, stating that if there is a dispute regarding the principal sum, a winding-up petition is not maintainable, and such disputes should be resolved in Civil Court.

Conclusion:
The Court dismissed Company Petition No. 64 of 1988 due to the existence of a bona fide dispute regarding the amount due. Consequently, CA No. 244 of 1990 was allowed, setting aside the order appointing the provisional liquidator. CA Nos. 1077 of 1989 and 258 of 1990 were also dismissed. No order as to costs was made.