2018 (8) TMI 1483 - HC - Companies Law

Winding up petition - liquidated damages imposed upon by IOCL for a sum of ₹ 1,70,700/- as the respondent claims that this took place on account of delayed delivery of the goods by the petitioner - Held that - The only plausible defence appears to be is the liquidated damages imposed upon them by IOCL for a sum of ₹ 1,70,700/- as the respondent claims that this took place on account of delayed delivery of the goods by the petitioner. The petitioner has denied this contention stating that there was no reason or occasion for the petitioner to withhold delivery of goods after having received them from the respondents. It is on instructions of the respondent that the goods were delivered to IOCL. Delivery was affected when instructions were received from the respondent to deliver the goods. Even if we accept the plea of the respondent regarding the imposition of liquidated damages of ₹ 1,70,700/- by IOCL, the fact remains that the respondent remains liable to pay a sum of ₹ 5,71,350/- minus liquidated damages of ₹ 1,70,700/- being a total of ₹ 4,00,650/-. There is no explanation as to why the said amount of ₹ 4,00,650/- has not been paid by the respondent to the petitioner. In my view, the minutes dated October 2013 clearly shows that the respondent has accepted its liability to the above effect. The liability of the respondent to pay its dues does not get washed away by this technical argument. A perusal of the file shows that the petition was filed on 22.10.2013 though it is dated 27.09.2013. The transactions have taken place in September 2012 to June 2013. A statutory notice was sent on 06.08.2013. Even if the petition was filed in September 2013, it does not do away with the liability of the respondent. The plea is completely without merit In our opinion, the respondent is unable to raise any bona fide dispute regarding the dues of ₹ 4,57,125/- Accordingly, admit the petition and appoint the Official Liquidator attached to this Court as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers Statesman (English) and Veer Arjun (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. However, in the interest of justice, the above order appointing the Official Liquidator as the Provisional Liquidator shall stand suspended for a period of six weeks in case the respondent made the necessary payment to the petitioner of a sum of ₹ 4,00,650/- with simple interest @ 9% p.a. from the date amount fall due.

Summary

Issues:
1. Petition filed under Sections 433 (e), (f), 434, and 439 of the Companies Act, 1956 seeking to wind up the respondent company.

Analysis:
The petitioner filed a petition seeking to wind up the respondent company under relevant sections of the Companies Act, 1956. The petitioner claimed an outstanding amount of &8377; 5,27,825 against the respondent for transportation services provided. Despite various attempts to recover the dues, including a statutory demand notice and admission of liability by the respondent in a meeting and email, the respondent failed to pay the outstanding amount. The petitioner argued that the respondent's claim of damages due to delayed delivery by the petitioner did not absolve them of their liability to pay the outstanding dues. The court noted the acknowledgment of liability by the respondent and found no merit in the respondent's defense regarding the imposition of liquidated damages by a third party. The court also dismissed the respondent's argument that the winding-up petition was filed before the delivery of goods, emphasizing that the liability remained regardless of the timing of the petition.

The court found that the respondent failed to raise any genuine dispute regarding the outstanding dues of &8377; 4,57,125. Consequently, the court admitted the petition and appointed the Official Liquidator as the Provisional Liquidator. The Official Liquidator was directed to take over all assets, books of accounts, and records of the respondent company. The court ordered the publication of citations in newspapers and the Delhi Gazette, with the petitioner bearing the publication costs. The Official Liquidator was tasked with preparing an inventory of assets, sealing the premises, and valuing the assets for the winding-up process. The court allowed the respondent a six-week period to make the necessary payment of &8377; 4,00,650 with interest, after which the appointment of the Official Liquidator would stand revoked if payment was made within the stipulated time frame.

This detailed analysis of the judgment highlights the legal proceedings, arguments presented by both parties, the court's assessment of liability and defenses, and the consequential orders issued by the court, ensuring a comprehensive understanding of the case and its outcome.