2015 (9) TMI 1766 - HC - Companies Law

Winding up of respondent-company - Sections 433 and 434 read with Section 439 of the Companies Act of 1956 - HELD THAT - While considering the winding up petition this Court is required to consider whether the claim of the petitioner is within the period of limitation or not i.e. debt is time barred or not and if the defence is raised by the respondent-company whether the said defence can be said to be reasonable and bonafide dispute or not. If the defence is bonafide and reasonable then the petition for winding up is not required to be entertained whereas if the defence/dispute raised by the respondent-company is an afterthought or if the same is raised with a view to hide its inability to pay its debt then the Court would consider the petition filed by the petitioner for winding up and admit the petition and thereafter will pass the order of winding up of the concerned company. In the facts and circumstances of the present case this Court is of the opinion that the defence raised by the respondent-company is reasonable and bonafide and the defence cannot be termed as an afterthought sham and bogus. The respondent-company is a going concern. It has not lost its substratum and the respondent-company is not commercial insolvent nor facing any financial cash crunch or crisis. The petition is liable to be dismissed and is accordingly dismissed.

Issues Involved:

1. Whether the respondent company is liable to pay the outstanding amount claimed by the petitioner.
2. Whether the respondent company is commercially insolvent and has lost its substratum.
3. Whether the dispute raised by the respondent company regarding the debt is bona fide and reasonable.
4. Whether the petition for winding up the respondent company is maintainable under the Companies Act, 1956.

Detailed Analysis:

1. Liability of the Respondent Company:

The petitioner claimed that the respondent company owed an outstanding amount of Rs. 73,60,623.11 for construction work performed under a work order dated 12.5.2011. The petitioner argued that the respondent had acknowledged the debt but failed to pay it, which justified the winding up of the respondent company. However, the respondent disputed the claim, arguing that payments had been made for undisputed amounts and that the remaining claims were contentious due to alleged delays and poor workmanship by the petitioner. The court considered the respondent's defense and found that the dispute was not an afterthought but a reasonable and bona fide issue that needed further examination in a civil court.

2. Commercial Insolvency and Substratum:

The petitioner alleged that the respondent company had lost its substratum and was unable to pay its debts. In contrast, the respondent provided evidence of its financial stability, including a profit of Rs. 12,12,99,000/- as of 31.3.2014, and a good track record of loan repayments. The court found that the respondent was a profit-making entity with substantial business operations and had not lost its substratum. Therefore, the court concluded that the respondent company was not commercially insolvent.

3. Bona Fide Dispute:

The court assessed whether the dispute raised by the respondent was bona fide and substantial. The respondent had raised concerns about the quality of work and delays in project completion, which were supported by documents and communications between the parties. The court determined that these disputes were genuine and not merely a tactic to avoid payment. The court emphasized that a winding-up petition should not be used to enforce payment of a disputed debt, as it could be an abuse of the process.

4. Maintainability of the Winding Up Petition:

The court referred to established legal principles, stating that the remedy under Section 433(e) of the Companies Act is discretionary and not a matter of right. The court must consider whether the company is genuinely unable to pay its debts and whether the dispute is bona fide. Given the respondent's financial health and the bona fide nature of the dispute, the court decided not to entertain the winding-up petition. The court highlighted that such petitions should not be used as a tool for debt recovery but should be reserved for cases where a company is clearly insolvent and unable to meet its liabilities.

Conclusion:

The court dismissed the petition for winding up the respondent company, concluding that the respondent had raised a bona fide and reasonable dispute regarding the debt, and was not commercially insolvent. The court emphasized that the observations made in this order should not influence any future civil proceedings between the parties, which should be decided on their own merits.

← Previous Next →