2016 (4) TMI 966 - HC - Companies Law

Winding up petition - Held that - This Court has given anxious consideration to the case put up by the parties and is of the considered view that there is bona fide dispute as to the debts payable by the respondent-company. The defence of the respondent-company is a substantial one. It is now well settled that machinery for winding up will not be allowed to utilize merely as a means for realizing its debts due from a company. Therefore, there is no justification whatsoever for allowing the present winding up petition. Thus, winding up petition is dismissed.

Issues Involved:
1. Whether the respondent-company should be wound up under Sections 433, 434, and 439 of the Companies Act, 1956.
2. Whether the petition is maintainable given the arbitration clause in the contract.
3. Whether the respondent-company is commercially insolvent.
4. Whether the petitioner suppressed material facts.
5. Whether the petition is maintainable for non-joinder of necessary parties.
6. Whether the petition is maintainable without leave of the court under Section 439(8) of the Companies Act, 1956.
7. Whether the petition is an abuse of process given the pending proceedings under Section 138 of the Negotiable Instruments Act, 1881.

Detailed Analysis:

1. Winding Up of Respondent-Company:
The petitioner sought the winding up of the respondent-company under Sections 433(e) and 433(f) of the Companies Act, 1956, citing the company's inability to pay its debts. The petitioner claimed that despite multiple reconciliations and partial payments, a sum of Rs. 1,54,11,576/- remained unpaid. The respondent-company issued cheques that were dishonored, leading to proceedings under Section 138 of the Negotiable Instruments Act, 1881.

2. Arbitration Clause:
The respondent-company raised a preliminary objection based on the arbitration clause in the contract dated 15.10.2006, which mandates arbitration for any disputes. The respondent argued that the petitioner was barred from initiating court proceedings without exhausting the arbitration clause. The court acknowledged the arbitration clause but noted that the petitioner's claim was based on admitted debts rather than disputed claims requiring arbitration.

3. Commercial Insolvency:
The petitioner argued that the respondent-company was commercially insolvent, unable to pay its admitted debts despite statutory demands. The respondent countered that financial hardships are common in business and do not equate to insolvency, especially since partial payments were made. The court considered the respondent's financial position and the substantial defense raised, concluding that the company was not commercially insolvent.

4. Suppression of Material Facts:
The respondent alleged that the petitioner suppressed material facts, including the disposal of proceedings under Section 138 of the Negotiable Instruments Act for want of jurisdiction. The court found that the petitioner disclosed the existence of the Section 138 proceedings, and there was no evidence of intentional suppression to mislead the court.

5. Non-Joinder of Necessary Parties:
The respondent contended that the petition was not maintainable for non-joinder of other creditors, banks, and shareholders who had a stake in the company. The court noted that while the views of other creditors are relevant, their non-joinder did not render the petition non-maintainable.

6. Leave of Court:
The respondent argued that the petition was not maintainable for non-compliance with Section 439(8) of the Companies Act, 1956, which requires leave of the court for a winding-up petition. The court did not find this argument persuasive as the petition was based on admitted debts, and the requirement for leave was not applicable in this context.

7. Abuse of Process:
The respondent claimed that the petition was an abuse of process since the petitioner was also pursuing proceedings under Section 138 of the Negotiable Instruments Act for the same debt. The court held that the Section 138 proceedings were independent criminal proceedings and did not preclude the petitioner from seeking winding up for admitted debts.

Conclusion:
The court concluded that there was a bona fide dispute regarding the debts payable by the respondent-company and that the defense raised by the respondent was substantial. It reiterated that the machinery for winding up should not be used merely as a means for realizing debts. Consequently, the court dismissed the winding-up petition, emphasizing that the petitioner's claims were better suited for resolution through arbitration or other appropriate legal proceedings.

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