2017 (4) TMI 1019 - HC - Companies Law

Company petition for winding up - allegation that company failed to make the payment against dues - Held that - Insofar as the submission of the learned counsel that the petitioner has already filed the company petition in the year 2012 but the same was required to be withdrawn in view of the petitioner not having been issued a statutory notice at the registered office of the respondent company is concerned, in my view the said petition which was filed without issuing a statutory notice at the registered office of the respondent would not save limitation. The letter dated 23rd February, 2012 addressed by the respondent calling upon the petitioner to furnish certain details would also not extend the period of limitation. It is held in catena of judgments that the correspondence does not extend the period of limitation unless there is acknowledgement of liability. Insofar as the issue raised by the learned counsel for the respondent that the notice was not served upon the registered office of the respondent and the packet containing such notice was returned unserved with the remark left is concerned, a perusal of the said registered AD indicates that the Postman has made an endorsement on the said envelope Left company. Return to the sender . It is not the case of the petitioner that the petitioner made any efforts thereafter to serve the notice personally at the registered office of the respondent. A perusal of the affidavit in reply indicates that it is the case of the respondent that the registered office address of the respondent continues even till today and that the respondent company is carrying on business from the said address. No rejoinder is filed to controvert this averment. In my view, Dr.Chandrachud is right in his submission that the statutory notice not having been served at the registered office of the respondent company, the petition for winding up was not maintainable on that ground also. Insofar as the last submission of the learned counsel for the respondent that there are duplicate invoices is concerned, a perusal of the documents annexed to the petition indicates that there is some duplication of invoices. The explanation of the learned counsel for the petitioner on this issue that they are not duplicate invoices but were issued for various works executed by the petitioner for the respondent from time to time is not convincing. This disputed fact cannot be gone into by this Court in the company petition. Thus the defences raised by the respondent in the affidavit in reply to which there is no rejoinder, are bonafide and are not moonshine. The disputed questions cannot be gone into in this winding up petition.

Issues Involved:
1. Whether the respondent is unable to pay its debts.
2. Whether the petitioner's claim is barred by the law of limitation.
3. Whether the statutory notice was properly served on the respondent.
4. Whether there are duplicate invoices filed by the petitioner.
5. Whether the defenses raised by the respondent are bona fide.

Issue-wise Analysis:

1. Whether the respondent is unable to pay its debts:
The petitioner argued that the respondent was unable to pay its debts, citing various transactions between 2006 and 2007, and payments made by the respondent up to 13th July 2011. The petitioner issued a notice on 11th February 2012 demanding payment of ?32,98,552.76, followed by a statutory notice on 1st May 2012 for ?24,01,125/- with interest. The petitioner claimed that the respondent made a part payment of ?50,000/- on 13th July 2011. However, the respondent contested this, stating that the payments were made between 2006 and 2008, and the last payment of ?50,000/- was for a different transaction.

2. Whether the petitioner's claim is barred by the law of limitation:
The respondent raised the issue of limitation, arguing that the claims were time-barred. The petitioner claimed the last payment was made on 13th July 2011, supported by vouchers dated 11th and 12th July 2011. However, discrepancies were noted in the amounts mentioned in the notices and vouchers. The court found that if the ?50,000/- entry was excluded, the claims would be barred by limitation. The court referred to the Division Bench judgment in Modern Dekor Painting Contracts Pvt. Ltd. vs. Jenson & Nicholson (India) Ltd., which held that a winding-up petition could only be entertained if the debt was within time on the date of filing. Since the claims were time-barred, the petitioner ceased to be a creditor.

3. Whether the statutory notice was properly served on the respondent:
The petitioner issued a statutory notice on 26th February 2014, which was returned unserved with the remark "Left company. Return to sender." The respondent argued that the notice was not served at their registered office, which continued to operate from the same address. The court found that the petitioner made no further efforts to serve the notice personally. The court held that the statutory notice was not properly served, rendering the winding-up petition not maintainable.

4. Whether there are duplicate invoices filed by the petitioner:
The respondent contended that several invoices were filed in duplicate, citing documents at various pages of the petition. The petitioner argued that these were for different works executed over time. The court found the petitioner's explanation unconvincing and noted the presence of duplicate invoices. This raised disputed questions of fact that could not be resolved in a winding-up petition.

5. Whether the defenses raised by the respondent are bona fide:
The court found that the defenses raised by the respondent were bona fide and not moonshine. The disputed questions of fact and the time-barred nature of the claims could not be resolved in a winding-up petition. The court concluded that the petition lacked merit and dismissed it, with no order as to costs.

Conclusion:
The petition was dismissed on the grounds that the claims were time-barred, the statutory notice was not properly served, and there were bona fide disputes regarding the invoices and payments. The court emphasized that disputed questions of fact could not be addressed in a winding-up petition.

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