2013 (4) TMI 414 - HC - Companies Law

Winding up petition - when can a winding up petition be admitted? - Petitioner had delivered goods and rendered services as a sub-contractor to company when it was undertaking work for railways - Company had admitted that it owed a sum to petitioner - Company contested that it had a substantial claim against sister concern of petitioner - Whether even if claim of company against petitioner s sister concern was accepted, company was indebted to petitioner? - Held that - From the tenor of the letter of September 5, 2009, it would be evident that the petitioner had authority to deal with the issues between the petitioner s associate concern and the company. In the light of such letter and the contents, the company s defence cannot be rejected out of hand that the two transactions were linked and the part of it cannot be seen in isolation. Nevertheless, it appears from the company s admission that it asserted that it owed the petitioner a sum of Rs. 26,08,858 and it had a claim against the petitioner s associate concern in the sum of Rs. 22,80,646.05. Even if the letter is taken on face value and the veracity of the assertions therein are not questioned, it appears that there is an unequivocal admission by the company of it being indebted to the petitioner in the sum of Rs. 3,28,211.95 if the two figures of Rs. 26,08,858 and Rs. 22,80,646.05 are reconciled. It is the same sentiment which is reflected in the company s affidavit, whereof the figures are repeated and the company has questioned the petitioner s claim only to the extent of the same exceeding Rs. 26,08,858. Thus the petition is admitted for the principal sum of Rs. 3,28,211.95 together with interest thereon at the rate of 6% per annum from August 1, 2012 since the statutory notice was issued on July 31, 2012. On payment of such amount within four weeks from date, the petition will remain permanently stayed else petition will be advertised once in The Statesman and once in Bartaman indicating that the matter will appear before Court on the first available working day after the expiry of four weeks from the date of the publications being made. Publication in the Official Gazette will stand dispensed with.

Summary

Issues:
Claim for goods and services rendered as a sub-contractor by the petitioner against the company. Defense raised by the company regarding a substantial claim against petitioner's associate concern. Interpretation of the relationship between the petitioner and the company in terms of outstanding dues. Admissibility of the petitioner's claim against the company based on documentary evidence and admissions made by the company. Decision on the principal sum claimed by the petitioner and the subsequent legal actions to be taken.

Analysis:
The petitioner claimed a sum of Rs. 31,77,331/- from the company for goods delivered and services rendered as a sub-contractor for the railways. The company's defense was based on the assertion that the petitioner and another company were part of the same group, and the company had a substantial claim against the petitioner's associate concern. The company argued that the petitioner's claim was not substantiated by any admission made on behalf of the company.

The petitioner responded by stating that unless there was an express agreement regarding the collective viewing of dues between the parties, the company's claim against the petitioner's associate concern could not be set off against the petitioner's claim. However, a letter dated September 5, 2009, indicated that the petitioner had authority to deal with the issues between the company and the petitioner's associate concern, suggesting a link between the transactions.

Despite the company's admission of owing the petitioner a sum of Rs. 26,08,858/- and having a claim against the petitioner's associate concern, the court found an unequivocal admission by the company of being indebted to the petitioner in the sum of Rs. 3,28,211.95 when reconciling the figures. The court admitted CP No. 372 of 2012 for the principal sum of Rs. 3,28,211.95 with interest, and provided conditions for the petition to be permanently stayed upon payment by the company within four weeks. The balance claim of the petitioner was relegated to a suit, and no order as to costs was made at that stage.