2012 (10) TMI 7 - HC - Companies Law

Winding up application - nonpayment of creditors - petitioner sent out two Section 434 notices, one dated 10th October, 1992 and other dated 26th March, 1993 - company did not reply to first notice - Held that - Companies Act, 1956 makes it explicit, that if a winding up notice is not replied to, by the company, immediately a presumption of insolvency is drawn (See Section 434 (1) (a) of the Companies Act, 1956). Further, there is a discrepancy in the defence taken in the reply to the statutory notice and in the Affidavit-in-Opposition. In the reply to the statutory notice it was said that there was full and final satisfaction of the claim of the petitioner. If, there was full and final satisfaction of the claim of the petitioner, there was admission of supply. This is inconsistent with the defence in the Affidavit-in-Opposition that the bills and challans are forged which if substantiated would go to show that no supply was made. There is clear evidence of supply of steel wires and there is no evidence on record to prove that the petitioner was satisfied with payment made and gave up its claim for the balance. Therefore, company has no defence to the claim of the petitioning creditor and winding up application is admitted.

Summary

Issues:
1. Lengthy legal proceedings in a winding up application pending since 1993.
2. Dispute over outstanding bills and non-furnishing of sales tax declaration forms.
3. Allegations of forged bills and false claims by the respondent.
4. Examination of statutory notices and presumption of insolvency.
5. Inconsistencies in the respondent's defense and evidence of supply of goods.
6. Evaluation of payment made by the company and satisfaction of the claim.
7. Analysis of discrepancies in the company's defense regarding outstanding amounts.
8. Decision on the winding up application and calculation of interest.

Issue 1: Lengthy Legal Proceedings
The judgment highlights the prolonged nature of the winding up application, which has been ongoing since 1993. Despite the extended duration, the dispute between the parties could not be resolved, leading to the need for a judicial decision.

Issue 2: Dispute Over Outstanding Bills
The petitioner filed the winding up application based on outstanding bills totaling Rs. 8,74,300/- for the supply of steel wires to the company. Additionally, a claim of Rs. 2,70,092.45/- was made due to the non-furnishing of sales tax declaration forms by the company. The total price amounted to Rs. 67,52,311.32/-, of which Rs. 58,77,995.88/- was acknowledged as paid by the company.

Issue 3: Allegations of Forged Bills
The respondent alleged that the bills and invoices presented by the petitioner were forged to support a false claim. They contended that the payment made was in full and final settlement of the petitioner's claim, denying any further liability. Additionally, discrepancies were pointed out regarding the petitioner's previous correspondence indicating a higher outstanding amount.

Issue 4: Examination of Statutory Notices
The judgment referred to the Companies Act, 1956, which presumes insolvency if a winding up notice remains unanswered by the company. The respondent failed to respond to the first statutory notice, triggering the presumption of insolvency as per Section 434 (1) (a) of the Act.

Issue 5: Inconsistencies in Defense
Inconsistencies were noted in the respondent's defense, where they initially claimed full satisfaction of the petitioner's claim but later alleged that the bills were forged. The petitioner provided evidence of supply through bills and challans, which remained unchallenged by the company.

Issue 6: Evaluation of Payment and Claim Satisfaction
Despite the partial payment made by the company, no evidence existed to prove that the petitioner accepted this amount as full settlement and waived the remaining claim. The judgment emphasized the lack of proof regarding the petitioner's satisfaction with the payment received.

Issue 7: Analysis of Discrepancies
The judgment clarified the alleged discrepancy highlighted by the respondent regarding outstanding amounts, indicating that the petitioner's previous communication accounted for the payments made by the company, aligning with the principal sum claimed and eliminating any inconsistency.

Issue 8: Decision on Winding Up Application
Based on the findings, the court admitted the winding up application for the claimed sum of Rs. 11,44,392.45, with specified interest rates. The judgment detailed the interest calculations and instructed the advertisement of the application in designated newspapers, setting a returnable date for further proceedings.

By addressing these issues comprehensively, the judgment provided a detailed analysis of the legal proceedings and resolved the dispute between the parties involved in the winding up application.