2019 (3) TMI 620 - HC - Companies Law

Maintainability of winding up petition - bonafide dispute or not - reliance by the respondent on the communication dated 03.04.2014 - Held that - The reliance on communication appears to be an afterthought. This is also apparent from the fact that this communication was written by Mr. I.C. Kalra, Vice President (Technical) who had himself signed the final running bill. The same person is now turning around and giving a completely different story - The respondents are clearly taking contrary stands regarding the authority of Mr.I.C.Kalra to take decisions on behalf of the respondent company. Communication dated 07.06.2011 written to Sehrawat Marbles - Held that - The learned counsel for the petitioner in court on instructions had clarified that the petitioner does not deal in Kotha Stones. Clearly, this communication/the alleged order relied upon by the respondents is make belief and cannot be relied upon. The settled legal position is that where the respondent company raises a bona fide dispute then no winding up petition would lie - in the facts of the above case the respondent company has failed to show any bona fide dispute. Present petition is admitted - List on 27th May, 2019.

Summary

Issues:
1. Petition filed for winding up of respondent No.1 company under specific sections of the Companies Act, 1956.
2. Dispute regarding completion of work and payment between petitioner and respondent No.1 company.
3. Allegations of abandonment of work by petitioner and subsequent engagement of another contractor by respondent No.1 company.
4. Examination of documents and communications by the court to determine the validity of claims and counterclaims.
5. Legal defense raised by respondent company against winding up petition based on substantial dispute of liability.
6. Decision of the court to admit the petition and appoint Official Liquidator as Provisional Liquidator.

Analysis:
1. The petitioner sought winding up of respondent No.1 company under specific sections of the Companies Act, 1956, due to non-payment of dues amounting to &8377; 31,81,269/-. The petitioner alleged completion of work to the satisfaction of respondent No.1 company and Hilton Company but faced delays in receiving payments despite multiple reminders and legal notices.
2. Respondent No.1 company disputed the claims, alleging that the petitioner misled them and failed to complete the work, leading to engagement of another contractor and additional expenses. The court examined documents like final bills, certificates, and communications between the parties to ascertain the validity of claims.
3. The court noted discrepancies in the respondent's defense, highlighting contradictions in communications and allegations made by the respondent's representatives. The court found the respondent's claims regarding abandonment of work by the petitioner unsubstantiated and lacking merit.
4. Based on the evidence presented, including signed certificates and billing documents, the court determined that the petitioner was entitled to the outstanding dues from the respondent company. The court dismissed the respondent's defense as lacking a bona fide dispute and admitted the winding up petition.
5. In accordance with legal principles, the court appointed the Official Liquidator as the Provisional Liquidator to take over the assets and records of the respondent company. The court also directed the publication of citations and seizure of bank accounts to facilitate the winding up process.
6. To provide an opportunity for settlement, the court suspended the appointment of the Official Liquidator for four weeks, allowing the respondent company to make the necessary payments. Failure to comply within the specified timeframe would result in the reinstatement of the Provisional Liquidator and continuation of the winding up process.

This detailed analysis outlines the key issues, arguments presented by both parties, court's examination of evidence, legal principles applied, and the final decision regarding the winding up petition.