2019 (6) TMI 218 - HC - Companies Law

Winding up of the respondent company - HELD THAT - Merely because there was same problem in 2010 regarding the technical staff that was deployed cannot ipso facto mean that it led to an explosion of the DG Set in 2011. There can be various reasons as to why there was a problem with the DG Set. In any case immediately after the explosion there has been no communication with the petitioner pointing out to the petitioner that its staff was negligent and was the cause of the said explosion in the DG Set. In the absence of any contemporaneous communication in this regard the plea of the respondent can only said to be an afterthought. Petition admitted.

Summary

Issues:
Petition filed under section 433 and 434 of the Companies Act, 1956 seeking winding up of respondent company due to unpaid dues. Dispute arises over outstanding amount and alleged negligence leading to explosion of DG Set.

Analysis:

1. The petitioner filed a petition seeking winding up of the respondent company under the Companies Act, 1956, citing unpaid dues amounting to ?9,77,271. The petitioner claimed to have provided management services as per the agreement and raised invoices monthly. A statutory notice was issued to the respondent demanding payment, which went unanswered, leading to the filing of the winding up petition.

2. The petitioner's counsel presented the agreement and emails as evidence of the outstanding dues. On the other hand, the respondent contended that the petitioner was responsible for providing a DG Set Operator, and negligence on the part of the petitioner led to an explosion of the DG Set, incurring significant replacement costs. The respondent sought to offset its dues against the petitioner's claim.

3. Email exchanges between the parties confirmed the outstanding dues of ?9,77,271, with acknowledgment from the respondent's representative. Additionally, the petitioner provided TDS certificates to support the claim of outstanding dues, indicating no dispute regarding the amount owed by the respondent.

4. The respondent raised concerns about the technical staff's conduct and the explosion of the DG Set, attributing it to the negligence of the petitioner's staff. However, the court noted the absence of any communication pointing out negligence immediately after the incident, considering the respondent's defense as an afterthought.

5. Referring to a previous judgment, the court emphasized the significance of the respondent's failure to respond to the statutory notice, leading to a presumption of indebtedness. The court found the petitioner's claim legally and validly due from the respondent, admitting the winding up petition and appointing the Official Liquidator as the Provisional Liquidator to take over the assets and records of the respondent-company.

6. To protect the assets and premises of the respondent-company, the Official Liquidator was directed to publish citations in newspapers and the Delhi Gazette, seize bank accounts, and prepare an inventory of assets. However, the court provided a four-week suspension on the appointment of the Provisional Liquidator, revocable upon the respondent's payment of the outstanding amount with interest.

7. The court ordered the petitioner to deposit a sum towards the cost of publication and authorized the Official Liquidator to seek police assistance if necessary. The matter was scheduled for the next hearing, allowing a grace period for the respondent to settle the dues and potentially avoid liquidation proceedings.