2012 (6) TMI 612 - HC - Companies Law

Winding up - dispute in respect of goods supplied - non-payment Held that - company did not raise any dispute contemporaneously in respect of demand raised by winding up petitioner - details of the description of the goods/materials supplied by the petitioner to the consignee are mentioned in the name of the respondent-company is shown as consignor and the said delivery notes are said to have been signed in acknowledgment of the receipt-delivery of the goods by the representative of the respondent-company - document at annexure E, i.e., copy of the Form C supplied by the petitioner supports the petitioner s contention - petition seeking winding up of respondent-company was to be admitted

Summary

Issues Involved:
1. Petition for winding up of the company.
2. Appointment of an official liquidator.
3. Allegations of unpaid invoices.
4. Respondent's opposition and claims of disputed facts.
5. Settlement attempts and their outcomes.
6. Admission of the petition and provisional orders.

Detailed Analysis:

1. Petition for Winding Up of the Company:
The petitioner sought the winding up of Computer Skill Limited under the Companies Act, 1956, due to unpaid invoices totaling Rs. 11,49,787. The petitioner claimed that despite repeated requests and a statutory notice under sections 433 and 434 of the Act, the respondent failed to pay the outstanding amount, indicating an inability to pay.

2. Appointment of an Official Liquidator:
The petitioner requested the appointment of the official liquidator attached to the High Court of Gujarat, Ahmedabad, to take charge of the company's assets, affairs, and records. This request was made pending the hearing and final disposal of the petition.

3. Allegations of Unpaid Invoices:
The petitioner supplied goods to the respondent and raised invoices, of which Rs. 2,32,753 was paid, leaving Rs. 11,49,787 unpaid. The petitioner issued a statutory notice demanding payment, which went unanswered, leading to the petition for winding up.

4. Respondent's Opposition and Claims of Disputed Facts:
The respondent opposed the petition, claiming no order was placed for the goods in question and denying the existence of any unpaid invoices. The respondent argued that the company is a going concern and that there are disputed issues of fact, making the winding-up petition unjustified.

5. Settlement Attempts and Their Outcomes:
The proceedings were adjourned multiple times at the respondent's request, citing intentions to settle. Despite claims of a settlement, the respondent eventually decided not to sign the consent terms, leading to the continuation of the petition on its merits.

6. Admission of the Petition and Provisional Orders:
The court noted the lack of response to the statutory notice and the absence of any contemporaneous dispute raised by the respondent regarding the delivery notes and invoices. The court found the respondent's defense to be an afterthought and not bona fide. Consequently, the petition was admitted, and the official liquidator was appointed as the provisional liquidator. The respondent was restrained from alienating any assets, and the petitioner was directed to publish the advertisement in specified newspapers.

Conclusion:
The court admitted the petition for winding up, appointed the official liquidator, and directed the publication of the advertisement while restraining the respondent from alienating its assets. The respondent's opposition was deemed an afterthought and not bona fide, leading to the provisional orders in favor of the petitioner.