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TMI Blog1999 (9) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... tition that the petitioners submitted a tender of civil work pertaining to strengthening of the existing quay wall to the respondent-company. The said tender was accepted by the company vide its letter dated 6-10-1993 and the contract was awarded to the petitioner. The said work was duly completed in all respects to the satisfaction of the respondent-company. The respondent-company accepted the said work without raising any dispute as to the quality or as to the time taken by the petitioners in completing the work. The respondent-company has certified that the value of the work actually executed by the petitioners is Rs. 577.23 lakhs. 3. After adjustment of some payments, the petitioner-company submitted that Rs. 357.94 lakhs is due a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability and they were always satisfied with the quality of work done by the petitioners. The respondent-company was also satisfied that the work was also done within the prescribed time. A reference has been made to the telefax dated 13-1-1996 sent by the respondent-company to the petitioners. The telefax reads as under : "Dear Sir, With due respect, may I bring to your kind notice that all efforts are "ON" at this end to settle your outstandings at our earliest. I think by this month end, you will have no reason to complaint. This delay is basically on account of non-release of our funds (through the proceeds of Public Issue as well as Khoka Buy Back money) by our financial institutions. I was in Bombay to meet them personally a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tled your amount by mid-March 96. However, I got preoccupied and was away from office for almost 15 days due to the sudden demise of my mother who expired on 24th February 96. I have taken adequate measures to see that the total amount is paid by lump sum. I myself am in a hurry for an early payment for the works carried out on the Graving drydock. Kindly resume the works as we are loosing consideration time and non-completion of the Graving dock will hereby effect the cash flow of the company for the year 1996-97. This is also for your kind information that the Company has approached Financial Institutions for Project Cost Over Run of Rs. 28 crores and they are being analyses by our Financial Institutions on priority basis to ensure ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners for abandoning the work and causing loss to the respondent-company. 9. A reply to this notice was sent by the advocates of the petitioners on 4-9-1996 repudiating the averments mentioned in the reply to the notice sent by the respondent. Thereafter the petitioners filed a company petition before this Court in September, 1996 and the notice of the company petition was issued on 17-10-1996. It may be pertinent to mention that during the pendency of this petition before this Court a telefax was sent on 27-12-1996 by the respondent-company to Essar Sisco Ship Management Company Limited asking Essar to pay Rs. 22.87 lakhs payable by Essar to the respondent-company directly to the petitioners. 10. On 10-2-1997, the managing d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undertakings the respondent-company did not pay the amount to the petitioners. 14. The learned counsel for the petitioners has drawn my attention to the letter dated 18-10-1995 sent by the general manager of the respondent- company to the petitioners congratulating them and their staff for carrying out the entire work by the petitioners successfully within a scheduled period agreed upon and that the work done by the petitioners was of high standard. Another certificate was issued by the managing director of the respondent-company. The relevant portion of the certificate reads as under : "They (petitioners) have carried out all the works within the time schedule of completion of time with excellent site set-up, proper equipments and m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en Industries (P.) Ltd. AIR 1971 SC 2600. 17. I am in respectful agreement with the propositions of law as laid down in these cases that the Court could rightly refuse a petition for winding up of the company when the claim of the petitioners is bona fide disputed by the respondent-company or it can refuse and relieve the petitioners in case the respondent-company has raised defence in good faith and is one of substance. 18. In the instant case only on the basis of unequivocal admissions of the petition, from 1996 till 1998, the claim of the petitioners is abundantly established. This is one of those unusual cases, where even during the pendency of winding up petition in this Court, the respondent-company admitted the liability o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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