2018 (9) TMI 1391 - HC - Companies Law

Winding up petition - non performance of obligation - Held that - None of the said e-mails dated March 21, 2012 or April 25, 2012 can be construed to contain any admission by the company to pay the amount claimed by the petitioner in this application. Considering all these facts, we find it difficult to conclude that the petitioner had performed its obligation under the said agreement dated October 6, 2009 within time or that the defence put up by the company in its letter dated May 12, 2014 lacks bonafide. Though , in the application the petitioner has denied to have received the notice dated February 17, 2011 but in the facts of the present case, as discussed above all the issues, including the one with regard to receipt of the said notice has to be decided after considering the evidence of the parties by the competent civil Court in a suit. As noted that on an earlier occasion by an order dated October 30, 2015 of the learned Single Judge of this Court, the present winding application was dismissed. The petitioner carried the said order dated October 30, 2014 in appeal being APO which was allowed by the Division Bench by the order dated January 5, 2015. As considered the earlier order dated October 30, 2014 as well as the order dated January 5, 2015 passed by Division Bench of this Court. However, none of the said orders records the findings, which I have arrived in the present case. For the reasons as aforesaid, although the company remain unrepresented, find no merit in the present application.

Summary

Issues:
- Winding up of the company under Section 433 (e) of the Companies Act, 1956 due to inability to pay debt.
- Dispute over outstanding dues for designing, erecting, supplying, and commissioning of an Air Cooled Condenser (ACC Unit) for a Captive Power Plant.
- Allegations of breach of contract by the company for failure to make timely payments and completion of the project within the stipulated period.
- Legal notices exchanged between the parties regarding outstanding dues and completion of work.
- Previous dismissal of the winding-up application by a Single Judge and subsequent appeal leading to a contradictory decision by a Division Bench.

Analysis:
The petitioner sought the winding up of the company under Section 433 (e) of the Companies Act, 1956, citing the company's inability to pay its debt. The petitioner claimed that the company failed to make timely payments for the design, erection, supply, and commissioning of an ACC Unit for a Captive Power Plant, resulting in hindrances to the project completion. Despite partial payments made by the company, a significant amount remained outstanding, leading to a legal dispute over the unpaid dues. The company, in response, alleged delays and breaches of contract by the petitioner, claiming damages and penalty charges amounting to a substantial sum. The petitioner issued a statutory notice demanding payment, which the company acknowledged but later disputed in subsequent communications. The Court noted discrepancies in the evidence presented, including emails indicating delays caused by the petitioner, leading to uncertainties regarding the completion of obligations under the agreement.

The Court also addressed the issue of a previous dismissal of the winding-up application by a Single Judge, which was later overturned by a Division Bench. However, the current judgment did not align with the findings of the previous orders. Despite the company being unrepresented, the Court found no merit in the present application for winding up, emphasizing the need for a thorough examination of all issues, including the receipt of legal notices, through a civil suit to determine the veracity of the claims and counterclaims. Consequently, the Court dismissed the application for winding up the company, highlighting the complexity and conflicting nature of the legal proceedings and evidentiary issues presented.