2018 (9) TMI 522 - HC - Companies Law

Winding up petition - existence of bonafide dispute - Held that - There is no bonafide defence raised by the respondent. The cheque issued for ₹ 4,56,122/- dated 27.10.2010, the acknowledgment dated 14.01.2012 by Mr.Narender read with the fact that when the legal notice was sent, there was no response by the respondent show that there is no defence or bonafide defence available to the respondent. Co-jointly all these facts lead to the conclusion that the said sum is due and payable. The faint and vague plea of denial by the respondent are make belief. The settled legal position is that the debts due should be payable by the respondent company. It is only where the respondent company raises a bonafide dispute then no winding up petition would lie. The respondent company has failed to show any bonafide dispute. Accordingly admit the present petition. The Official Liquidator attached to this court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers Statesman (English) and Veer Arjun (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing.

Summary

Issues:
Winding up petition under Sections 433(e) and (f), 434(1)(a) and 439(1)(b) of the Companies Act, 1956 for outstanding dues of a respondent company.

Detailed Analysis:
1. The petitioner filed a winding up petition against the respondent company for unpaid dues amounting to ?5,71,640. The respondent had placed orders for plywood and allied products but failed to clear the outstanding balance. The petitioner received partial payments but was left with a significant amount due. Despite issuing a legal notice, the respondent did not respond, leading to the filing of the petition.

2. The respondent raised several defenses, including disputing the liability for certain invoices and claiming that the acknowledgment of debt was invalid as it was not signed by an authorized representative. Additionally, the respondent argued that a post-dated cheque was intended as security and not for encashment.

3. The court examined the evidence presented by both parties. It noted that while the respondent disputed the invoices' validity, the petitioner argued that they were raised at the respondent's insistence. The court found that the post-dated cheque was issued against the supply of goods, contradicting the respondent's claim of it being a security measure.

4. Regarding the acknowledgment of debt, the court observed that the respondent's denial lacked substance as the acknowledgment bore the stamp of the respondent company and was signed by an individual named Mr. Narender. The respondent's failure to take action against Mr. Narender's alleged unauthorized actions weakened their defense.

5. The court emphasized the importance of a bona fide dispute in such cases, citing a Supreme Court judgment. It highlighted that a genuine dispute must be bona fide and not speculative. In this case, the court found that the respondent failed to raise a valid defense, leading to the admission of the winding up petition.

6. Consequently, the court admitted the petition, appointed the Official Liquidator as the Provisional Liquidator, and directed the takeover of the respondent company's assets. The court also ordered the publication of citations and the sealing of premises to protect the assets. However, the court provided a four-week suspension of the order to allow the respondent to settle the outstanding dues and avoid further liquidation proceedings.