2017 (1) TMI 1012 - HC - Companies Law

Winding up petition - prayed for appointment of the Official Liquidator of all the assets, business, affairs, property, books of accounts etc. with all powers under the Companies Act, 1956 - Held that - Since the respondent has failed to pay the admitted dues, the petitioner has made out a case for grant of interim relief in terms of prayer clause (d). However, it is made clear that the respondent shall be permitted to deal with or dispose of the assets in ordinary course of business. The respondent shall maintain accounts and shall furnish a copy of such account every six months from today to the petitioner. Pass the following order - a). The company petition accordingly is admitted and shall be advertised in two local newspapers, namely (i) Free Press Journal (in English) and Navshakti (in Marathi) as also in the Maharashtra Government Gazette. Any delay in publication of the advertisement in the Maharashtra Government Gazette, and any resultant inadequacy of notice shall not invalidate such advertisement or notice and shall not constitute non-compliance with this direction or with the Companies (Court) Rules, 1959. b). The company petition is made returnable after eight weeks. The petitioner shall deposit ₹ 10,000/- towards publication charges with the Prothonotary & Senior Master, under intimation to the Company Registrar, within two weeks from the date of admission, failing which the petition shall stand dismissed for the non-prosecution without further reference to the Court. After the advertisements are issued, the balance, if any, shall be refunded to the petitioner. c). Learned counsel for the respondent waives service of notice under Rule 28 of the Companies (Court) Rules, 1959.

Summary

Issues Involved:
Winding up petition filed by the petitioner against the respondent company for recovery of outstanding dues.

Analysis:
1. The petitioner supplied Ready Mix Concrete to the respondent company between March and April 2013 worth &8377; 17,84,500. The respondent made partial payments but failed to clear the outstanding amount of &8377; 10,84,000 as per invoices issued by the petitioner.

2. The petitioner sent reminders and a statutory notice demanding payment, to which the respondent did not reply. The respondent acknowledged the outstanding balance but failed to make any payments, leading the petitioner to file a winding-up petition seeking recovery of &8377; 14,63,421 as of the petition date.

3. The petitioner argued that the respondent's defense of alleged defective goods was an afterthought, as no complaints were raised during the transactions. The respondent's admission of receiving goods as per specifications in their affidavit contradicted their new claims.

4. The respondent disputed the invoices claiming discrepancies and non-receipt of correct invoices. They argued that the petitioner's demand varied in different communications, leading to a dismissal of the petition. However, the court held that the discrepancies in the claimed amount did not warrant dismissal as the admitted liability exceeded &8377; 500.

5. The court noted that the respondent's failure to pay the admitted dues justified granting interim relief to the petitioner. The petition was admitted, and advertisements were ordered in local newspapers and the government gazette. The respondent was allowed to conduct business as usual but required to maintain accounts and provide copies to the petitioner every six months.