2012 (12) TMI 711 - HC - Companies Law

Winding-up petition creditor s stayed - condition for receiving the payment from the company appeared not to have been complied with by the petitioning creditor - Held that - The company would be obliged to pay the sum of Rs.1.45 lakh to the petitioner if the petitioner had complied with its obligation to discharge the electricity dues to the company entitling the petitioner to receive such payment. The petitioner has adequately demonstrated, on the basis of the documents appended to its latest affidavit, that the electricity dues have been cleared and the adamant and unjustified stand still taken by the company would demonstrate its inability to pay its debt and would eminently qualify the company to be wound up. There is no defence that the company can show to resist payment of the sum of Rs.1.45 lakh that was due in terms of the relevant clause of the memorandum of understanding, particularly in the light of the electricity company s letter demanding payment of a particular sum in full and final satisfaction of its claim and the company s acceptance of the veracity of the relevant money receipt. As to the company s reference to failure of the petitioner to discharge its obligations on account of the provident fund dues of the employees, the relevant clause does not empower the company to withhold any payment on account of the petitioner s failure to cooperate with the company in such regard. The company is left free to establish the petitioner s default and take appropriate action before the proper forum. Thus the company has not made payment of the said sum without just cause and, accordingly petition is admitted for the principal sum of Rs. 1,44,033/- together with interest thereon at the rate of 10% per annum from September 24, 2010 (the money receipt issued by the electricity company is dated September 23, 2010) till payment. If the company pays the entire amount, inclusive of interest and costs assessed at 2000 GM, within a fortnight from date, the petition will remain permanently stayed.

Issues:
1. Review of the order declining to admit the winding-up petition and the one dismissing the review application.
2. Validity of the claim by the petitioning creditor under an agreement for money due.
3. Requirement of a no-dues certificate for payment under the memorandum of understanding.
4. Dispute over payment made by a sister concern on behalf of the company.
5. Company's contention regarding petitioner's failure to cooperate on provident fund dues.
6. Admissibility of additional documents submitted by the petitioning creditor.
7. Determination of the company's liability to pay the petitioner the due amount.

Analysis:
1. The creditor's winding-up petition was initially stayed due to non-compliance with a condition for payment. Despite a review attempt, the petition was not admitted. The Appellate Court allowed reconsideration based on new documents.

2. The petitioning creditor claims money under an agreement where land was conveyed to the company. A sum of Rs. 1.45 lakh remains due as per a memorandum of understanding.

3. The company objected to the petition, citing the requirement of a no-dues certificate for payment. The petitioner failed to produce this certificate initially, leading to the petition's rejection.

4. A cheque for Rs. 1.45 lakh was dishonored, leading to a dispute over payment made by a sister concern on behalf of the company.

5. The company alleged the petitioner's non-cooperation on provident fund dues but lacked substantial evidence to support the claim.

6. The petitioning creditor submitted additional documents, including a letter from the electricity company and a money receipt, to support the claim.

7. The Court determined the company's liability to pay the petitioner the due amount, considering the clearance of electricity dues as sufficient evidence to warrant payment. The company was ordered to pay the principal sum with interest, failing which the winding-up petition would proceed.

This detailed analysis covers the various legal issues involved in the judgment, highlighting the key arguments and decisions made by the Court in the case.

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