2015 (3) TMI 414 - HC - Companies Law

Default in payment of dues - Amount admitted as due and payable - Winding up petition by other party - Debt recovery tribunal (DRT) order not to pay till proceedings over - Held that - In this regard, the very minutes of the meeting referred to by the learned counsel for the petitioner, on a close perusal would indicate that though the said amount of ₹ 34,83,215/- was admitted as the net amount due and payable by the respondent to the petitioner, in the very meeting it is recorded that the respondents herein will be in a position to release the payment to the petitioner on getting 'no objection certificate' from the Bank of Maharashtra which would be relevant for the purpose of the settlement of claim between the petitioner and the respondent. Therefore, if this aspect is kept in view and the fact that the Bank of Maharashtra has initiated proceedings against both the petitioner and the respondent before the DRT in O.A. No. 157/2010 and in the said proceedings, the Bank of Maharashtra has obtained an order of restraint against the respondent herein against paying the amount to the petitioner would disclose that the defence as put forth by the respondents herein is a bona fide one and it cannot be considered that the respondent-company are unable to pay their debts. On the other hand, they have been prevented in law against paying the said amount to the petitioner. Therefore, the prayer as made in the petition to wind up the respondent-company would not be maintainable in the instant petition. - Application of winding up rejected.

Summary

Issues:
1. Petition seeking winding up order against respondent-company.
2. Dispute over the amount due and payable by the respondent to the petitioner.
3. Respondent's argument regarding inability to pay the due amount.
4. Applicability of previous legal decisions in the current case.
5. Consideration of the Bank of Maharashtra's proceedings and the restraint order obtained.

Analysis:

1. The petitioner filed a petition seeking a winding-up order against the respondent-company due to an unpaid amount resulting from a contract for construction work on a sewage disposal system.

2. The dispute revolves around the amount due and payable by the respondent to the petitioner, which was determined to be &8377; 34,83,215 after a meeting between the parties and the issuance of a statutory notice.

3. The respondent, while not disputing the amount owed, argued their inability to pay due to proceedings initiated by the Bank of Maharashtra before the Debts Recovery Tribunal (DRT), which included a restraint order against disbursing the amount to the petitioner.

4. The petitioner relied on legal precedents such as Maruti Udyog Limited vs. Hindusthan Photo Film Manufacturing Co. Ltd. and Rydak Syndicate Ltd. vs. Roshanlal Agarwal, but the court found these decisions inapplicable to the current case's unique circumstances.

5. The court considered the Bank of Maharashtra's proceedings and the restraint order obtained, concluding that the respondent's inability to pay was due to legal constraints rather than financial incapacity. The court dismissed the petition for winding up the respondent-company, advising the petitioner to seek remedies for adjusting the amount owed to the Bank of Maharashtra through appropriate legal channels.

In conclusion, the court disposed of the petition, granting liberty to the petitioner to pursue necessary actions to address the outstanding amount owed in accordance with the law and the constraints imposed by the Bank of Maharashtra's proceedings.