9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2015 (6) TMI 574 - HC - Companies LawWinding up petition u/s 433 and 434 of the Companies Act, 1956 - Default in repayment of dues - Held that - keeping in view the ratio of the decision of the Supreme Court in M/s. MADHUSUDHAN GORDHANDAS & CO. v. MADHY WOOLLEN INDUSTRIES PVT. LTD. 1971 (10) TMI 49 - SUPREME COURT OF INDIA it has to held that the defence of the respondent company appears bonafide but the exact amount of debt, which is disputed, cannot be ascertained on the basis of the evidence on record. However, it cannot be said that the defence of the respondent company is not a substantial defence. Since the object and purpose of the present winding up petition is not regarding quantification of debt due and payable, so for as is relevant for the purpose of the present petition, though the petitioner/creditor has prima facie established entitlement for the amount, as claimed in the company petition, it cannot be said that the defence of the respondent company is mere moonshine and is only raised for the purpose of avoiding its inability to pay the debt. Following principles related to bona fide disputes evolved from the Supreme Court decision in Tube Investments of India Ltd. - If there is dispute as regard the payment of sum towards principal however small, petition for winding up is not maintainable - Existing of dispute with regard to payment of interest can not be construed as existence of bona fide dispute - If ther is no bona fide dispute with regard to sum payable towards principal, it is open to the creditor to resort both the remedies of filing a civil suit as well as filing a petition for winding up . In the present case also it is not shown that the respondent company is unable to meet its liability as and when they accrued. It is also accepted in the present case that the respondent company is a profit making company and not a single instance of any creditor s legal action before any forum was pointed out by P.W.1. In view of that, therefore, since, prima facie, dispute exists about the debt, as claimed by the petitioner company, I do not find any justification for ordering winding up of the respondent company. There are neither pleadings nor any evidence to support the petitioner s claim that the respondent company is liable to be wound up on the ground that such order would be just and equitable. On the contrary, the facts, on record, clearly show that a profit making company for the last more than three years is not required to be wound up on any ground. - Petition for winding up dismissed.
Issues Involved:
1. Whether the petitioner company has established indebtedness of the respondent company, as claimed in the petition? 2. If the answer to the first point is in the affirmative, whether winding up of the respondent company is warranted under Section 433(e) of the Companies Act, 1956? 3. Whether on the facts and in the circumstances, winding up of the respondent company is warranted under Section 433(f) of the Companies Act, 1956? Issue-wise Detailed Analysis: Point No.1: The petitioner company claims a debt of Rs. 14,47,540/- along with interest at 24% per annum, alleging that the respondent company has failed to pay for the supplied PCBs. The respondent company disputes this claim, arguing that the petitioner did not account for defective/rejected PCBs and that, in fact, the petitioner owes the respondent Rs. 2,57,533/-. The respondent's reply to the statutory notice highlights that the account has not been reconciled and requests the petitioner to lift the rejected material and settle the account. The petitioner counters that the PCBs were acknowledged as "RECEIVED CONTENTS VERIFIED" and that the rejection claim is an afterthought. However, the court notes that there is no clear evidence on whether the rejected PCBs were within the stipulated shelf life or if the respondent timely informed the petitioner. The court, referencing the Supreme Court's decision in M/s. MADHUSUDHAN GORDHANDAS & CO. v. MADHU WOOLLEN INDUSTRIES PVT. LTD, concludes that the respondent's defense appears bona fide, and the exact amount of debt cannot be ascertained based on the evidence. Thus, Point No.1 is answered against the petitioner company. Point No.2: Even if Point No.1 were in favor of the petitioner, the court examines whether the respondent company should be wound up under Section 433(e) of the Companies Act, 1956. The court refers to the Supreme Court decisions in M/s. MADHUSUDHAN GORDHANDAS & CO. and IBA HEALTH (INDIA) (P) LTD. v. INFO-DRIVE SYSTEMS SDN. BHD, which state that if a debt is bona fide disputed, the court will not wind up the company. The court emphasizes that winding up petitions should not be used to pressurize companies to pay disputed debts and that the company court should not function as a debt-collecting agency. The respondent's financial statements show substantial profits and a significant order from MSEDCL worth Rs. 25 crores. The court finds no evidence of commercial insolvency and notes that no other creditors have supported the winding-up petition. Therefore, Point No.2 is answered against the petitioner. Point No.3: There are no pleadings or evidence to support the claim that winding up the respondent company would be just and equitable under Section 433(f) of the Companies Act, 1956. The court notes that the respondent company has been profit-making for the last three years and finds no grounds for winding up. Thus, Point No.3 is answered against the petitioner. Conclusion: The company petition is dismissed. The petitioner company is at liberty to establish the debt of the respondent company by approaching the competent Court of law in accordance with law. There shall be no order as to costs.
|
