2018 (10) TMI 1487 - HC - Companies Law

Winding up petition - failure to pay the debts - acknowledgment of debt - Held that - Keeping in view the clear admission as contained in the communication dated 5.12.2009 and the pleadings and reply filed by the respondents to para 12 of the winding up petition it is manifest that the stated amount remains unpaid. The attempt of the respondents to claim that there is a bona-fide dispute regarding the payment payable for the singur project appears to lack bona fide as in all the communications that have taken place after 5.12.2009 there is no reference to any deficit work regarding the Singur project. There is no bona fide dispute raised by the respondent. Accordingly, I 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 433/434 and 439 of the Companies Act, 1956 seeking unpaid dues for supply of pre-engineered solid web portal building system for Singur and Jamshedpur projects.

Analysis:
1. The petitioner filed a winding up petition seeking payment for supply of pre-engineered solid web portal building systems for Singur and Jamshedpur projects. The petitioner claimed a balance amount of &8377; 25,30,656 for Singur and &8377; 44,33,799 for Jamshedpur remained unpaid after receiving partial payments from the respondent. The petitioner sent legal notices after which the winding up petition was filed.

2. The petitioner's counsel emphasized communications from the respondent acknowledging the debt for both projects. The respondent raised quality issues only for the Jamshedpur project, not Singur, and admitted the due amount for Singur. The respondent claimed incomplete work by the petitioner led to damages, disputing the dues. The respondent cited emails and a court judgment to support their stance.

3. The court noted the absence of complaints regarding the Singur project and acknowledged the respondent's admission of dues for Singur in communications. The respondent's objections regarding incomplete work were specific to the Jamshedpur project. The petitioner highlighted a clear admission of outstanding dues for Singur in communications and account statements.

4. The court reviewed emails post the acknowledgment of dues, finding no mention of issues with the Singur project. Despite the respondent's claims of incomplete work, the lack of dispute over Singur dues was evident. The court referenced a Supreme Court judgment emphasizing the need for genuine disputes in winding-up petitions.

5. Concluding that there was no bona fide dispute raised by the respondent, the court admitted the petition for winding up the company. The Official Liquidator was appointed as the Provisional Liquidator to take over the company's assets, books, and records. The court directed the publication of citations and ordered the petitioner to deposit costs for publication. The respondent was given a four-week opportunity to pay the outstanding dues to revoke the winding-up order.

This detailed analysis covers the issues raised in the winding up petition under the Companies Act, 1956, focusing on the unpaid dues for specific projects and the acknowledgment of debt by the respondent.