2018 (9) TMI 156 - HC - Companies Law

Winding up of the company for non-payment of its dues - Held that - It is interesting to note that none of the purported debit notes of the company does not mention any particular invoice of the petitioner. When the petitioner s claim against the company in this application relates to the eleven invoices dated from September 25, 2014 the minutes of the meeting held between the representatives of the respective parties on September 06, 2014 relied upon by the company is of no significance. Even the invoices mentioned in the electronic mail dated March 28, 2015 disclosed by the company as Annexure- D to its affidavit are different invoices and do not form part of the petitioner s claim in this application. But for the said purported debit notes, the liability of the company to pay ₹ 7,44,027 for non issuance of the Sales Tax C-Form to the petitioner as claimed in this application is not in dispute. Now, I have already found that the company has not been able to prove receipt of any of the said purported debit notes by the petitioner. Therefore, the company has to pay the claim of the petitioner for not issuing the C Forms. Winding up application against the company is admitted for ₹ 83,29,206/- (Rs. 75,85,179/- on account of the outstanding eleven invoices plus ₹ 7,44,027/- on account of non-furnishing of C-Forms) with interest thereon, at the rate of 8 per cent, per annum from the date of the statutory notice, that is, April 09, 2015 till payment is made. The petitioner is directed to publish the advertisement of this application once, in the English newspaper The Statesman and once, in the Bengali newspaper Bartaman . The advertisements should indicate that the matter will appear before Court on the first available working day after the expiry of a period of three weeks from the date of the publications being made. However, publication in the official gazette will stand dispensed with.

Summary

Issues Involved:
1. Non-payment of dues by the company.
2. Allegations of defective and short supply of materials.
3. Issuance and dishonor of post-dated cheque.
4. Non-furnishing of sales-tax declaration forms (C-Forms).
5. Bona fide defense by the company against the winding-up petition.

Detailed Analysis:

1. Non-payment of dues by the company:
The petitioner, a dealer of ITC Ltd., supplied various materials to the company based on purchase orders. Despite receiving and accepting the materials and invoices without objection, the company defaulted on payments for twelve invoices dated between August 04, 2014, and January 15, 2015, totaling ?76,67,533/-. The company later paid ?82,354/- against one invoice, leaving an outstanding balance of ?75,85,179/- for eleven invoices. The petitioner disclosed all relevant documents, including purchase orders, delivery challans, and invoices, supporting their claim.

2. Allegations of defective and short supply of materials:
The company disputed the petitioner's claims, alleging that the materials supplied were defective and not as per specifications. They cited minutes of a meeting held on September 06, 2014, and raised debit notes on various dates to adjust the invoices due to defective supplies. However, the petitioner contended that these allegations were baseless and that they never received the debit notes. The court noted that the company failed to provide documentary evidence proving the receipt of these debit notes by the petitioner.

3. Issuance and dishonor of post-dated cheque:
The company issued a post-dated cheque for ?25 lakh towards part payment of its dues, which was dishonored upon presentation with the remark "exceeds arrangement." The petitioner filed a complaint under Section 138/141 of the Negotiable Instrument Act, which was pending. The court observed that the issuance of the cheque indicated the company's acknowledgment of its liability towards the petitioner.

4. Non-furnishing of sales-tax declaration forms (C-Forms):
The petitioner claimed that the company failed to provide the requisite sales-tax declaration forms (C-Forms) for the supplies made, resulting in an additional liability of ?7,44,026.55/-. The court found that the company did not dispute this claim and had to pay the amount due to non-issuance of the C-Forms.

5. Bona fide defense by the company against the winding-up petition:
The company argued that it had a bona fide defense against the petitioner's claim, citing a civil suit filed for a declaration that the petitioner had no right to claim the amounts due. The court referred to the principles established in the case of Madhusudan Gordhandas and Co.-vs- Madhu Wollen Industries Pvt. Ltd., which require the defense to be in good faith, substantial, likely to succeed in law, and supported by prima facie proof. The court found that the company's defense lacked bona fide as it failed to substantiate the receipt of debit notes and the suit appeared to be an attempt to create confusion rather than a genuine defense.

Conclusion:
The court admitted the winding-up application against the company for ?83,29,206/- (?75,85,179/- for the outstanding invoices and ?7,44,027/- for non-furnishing of C-Forms) with interest at 8% per annum from the date of the statutory notice until payment. The petitioner was directed to publish advertisements of the application in specified newspapers. The court emphasized that the company's defense was not in good faith and did not meet the required legal standards to refuse the winding-up petition.