2012 (11) TMI 875 - HC - Companies Law

Winding up petition - Held that - The statutory notice as well as the prayers prayed for in both petitions indicate that these are the petitions filed for the purpose of recovery of dues as envisaged under Section 433(e). Considering the ratio laid down in Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. (1971 (10) TMI 49 - SUPREME COURT OF INDIA ) an order under Section 433(e) is discretionary. There must be a debt due and the company must be unable to pay it. It is further observed that, a debt under this section must be a determined or definite sum of money payable immediately. It is also held that if the debt is disputed and the defence is a substantial one, the court will not pass an order of winding up the company. If the debt is a disputed debt and the defence is substantial one order of winding up should not be passed. It is also note worthy that after the petitions were admitted no other persons have raised any claim and, therefore, this Court finds that the debt being disputed and there exists a bona fide dispute. The present petitions cannot be used as tool for recovery and, therefore, considering the aforesaid facts and circumstances of the case, when the debt itself is disputed the petition for winding up deserve to be dismissed. Hence, the petitions are hereby dismissed.

Issues Involved:
1. Petition for winding up under the Companies Act, 1956.
2. Alleged unpaid debts and interest by the respondent company.
3. Bona fide dispute regarding the debt.
4. Defense of the respondent company.
5. Legal principles governing winding-up petitions.

Detailed Analysis:

1. Petition for Winding Up under the Companies Act, 1956:
Both petitions sought an order for winding up the respondent company under the provisions of the Companies Act, 1956. The petitions were consolidated due to identical issues. The petitioner claimed that the respondent company, Nilsin Ultrachem Limited, failed to repay advances and interest, leading to the demand for winding up.

2. Alleged Unpaid Debts and Interest:
The petitioner in Company Petition No. 14 of 2006 claimed advances totaling Rs. 10,13,446/- including interest, while the petitioner in Company Petition No. 15 of 2006 claimed Rs. 14,53,115/- based on unpaid invoices. Statutory notices were issued under Section 433(e) read with Section 434 of the Act, demanding payment within three weeks, failing which winding up petitions were filed.

3. Bona Fide Dispute Regarding the Debt:
The respondent company denied receiving the alleged loans and disputed the amounts claimed. It contended that the transactions were related to trading activities and not loans. The respondent also claimed to have raised a debit note for Rs. 9,38,525/- against inflated invoices from the petitioner. The court noted that the respondent's defense indicated a bona fide dispute regarding the debt.

4. Defense of the Respondent Company:
The respondent argued that the petitions were filed to harass and pressurize it into paying disputed amounts. It highlighted that the petition was delayed and pertained to transactions from 2002, making the claims time-barred. The respondent also pointed out that the petitioner had not waived its right to file a civil suit for recovery, suggesting that the winding-up petition was an inappropriate remedy.

5. Legal Principles Governing Winding-Up Petitions:
The court referred to several precedents, emphasizing that winding-up petitions are discretionary and should not be used as a means to enforce payment of disputed debts. The Supreme Court in Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. held that if a debt is bona fide disputed and the defense is substantial, the court will not order winding up. The court also cited IBA Health (I) (P.) Ltd. v. Info-Drive Systems Sdn. Bhd., which stressed that winding-up petitions should not be used to pressurize companies to pay disputed debts and that the court should act with caution to prevent abuse of process.

Conclusion:
The court concluded that the debt claimed by the petitioner was disputed and the defense raised by the respondent was substantial. Therefore, the petitions for winding up could not be used as a tool for debt recovery. The petitions were dismissed, and the court emphasized that winding-up orders should not be granted when there is a bona fide dispute regarding the debt. The registry was directed to place a copy of the order in connected matters.

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