2013 (4) TMI 476 - HC - Companies Law

Winding up - non payment of the value of the goods supplied - Held that - following the Apex Court in case of Pradeshiya Industrial & Investment Corpn. of U.P. v. North India Petrochemicals Ltd. 1994 3 TMI - 267 ., An order u/s 433(e) is discretionary. There must be a debt due and the company must be unable to pay the same. A debt under the Section must be a determined or a definite sum of money payable immediately or at a future date. The inability referred to in the expression unable to pay its dues , in Section 433(e) should be taken in the commercial sense. In that, it is unable to meet current demands. It is plainly and commercially insolvent. Petition is accordingly dismissed.

Summary

Issues:
1. Interpretation of a commercial agreement for supply of goods under the Companies Act, 1956.
2. Assessment of defective goods supplied and liability for payment.
3. Determination of jurisdiction for adjudication based on the nature of the dispute.
4. Application of legal principles regarding discretion under the Companies Act for debt recovery.

Analysis:

1. The judgment dealt with a dispute arising from an agreement between two companies under the Companies Act, 1956, for the supply of goods. The petitioner alleged non-payment by the respondent, leading to a statutory notice and subsequent legal action invoking specific sections of the Act.

2. The respondent contested the petition, claiming that the goods supplied were defective, necessitating replacements and asserting a counterclaim for a specific sum. The court noted that the determination of whether the goods were defective or not was a factual issue requiring trial, thereby necessitating the matter to be adjudicated in a civil court.

3. Referring to legal precedent, the court emphasized the requirement for a prima facie case to be established by the petitioner to trigger court intervention under the Companies Act. The judgment highlighted that a mere assertion of debt is insufficient, and the burden lies on the respondent to disprove the claim with a genuine and substantial defense.

4. Citing a relevant decision, the court underscored the discretionary nature of orders under the Companies Act, particularly in cases of debt recovery. The judgment outlined the criteria for determining commercial insolvency, emphasizing the need for a clear inability to meet current financial obligations for court intervention.

In conclusion, the petition was dismissed based on the court's assessment of the legal principles and factual complexities involved in the dispute, ultimately determining that the matter should be resolved through a civil court due to the triable issues raised.