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TMI Blog2000 (11) TMI 1130X X X X Extracts X X X X X X X X Extracts X X X X ..... rder was passed by the learned Single Judge of this court, these two appeals can be disposed of by a common judgment. 4. It is unnecessary to set out every detail with regard to the case of the respective parties in both the appeals in view of the fact that the only question/issue which arises for consideration is, viz. , whether the learned Single Judge is right in passing the order now appealed against. 5. As far as OSA No. 69 of 2000 is concerned, the respondent filed the company petition under section 443( e ), ( b ) and 434(1)( a ) of the Companies Act, 1956 ( the Act ) read with section 439(1)( b ) of the said Act, praying the court to wind up the appellant company as per the provisions of the Act, 1956. Admittedly, the respondent was appointed as advertising agent of the appellant in the year 1994. The respondent claiming that the appellant failed to pay the amount due towards the services rendered by it, issued a statutory notice dated 22-11-1996 to the appellant, calling upon it to pay a sum of Rs. 1,11,67,630.89 as principal with interest thereon at 24 per cent per annum, amounting to Rs. 20,12,314 as on 15-9-1996. 6. Briefly, in the company petition, the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1993 and that for the services rendered by it, the appellant was liable to pay a sum of Rs. 1,52,43,258.98 with interest thereon at 24 per cent per annum, amoun-ting to Rs. 36,31,954.59 as on 15-11-1996. The specific case set out in the company petition by the respondent is that it made repeated demands to the appellant/company to clear all the outstanding dues since February, 1996, and finally by letter dated 21-6-1996; the appellant/company sent a reply, saying that its accounts department is looking into the total outstanding to ascertain the amount that has to be paid and, thereafter, the appellant gave commitment to settle the entire outstanding as per the schedule prepared. The said schedule of payment, in fact, was acknowledged by the respondent, by its letter dated 24-1-1996. However, the appellant did not comply with the undertaking and, by letters dated 3-8-1996 and 12-8-1996, attempted to evade its undisputed liability by stating that the amount shown as outstanding from the NEPC Group companies is exaggerated. 8.1 The appellant resisted the company petition, inter alia , contending that the claim of the respondent that the appellant acknowledged the receipt of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... putes the liability, then the Company Court loses jurisdiction. 10.1 Secondly, it was contended that the learned Single Judge has proceeded to pass the impugned order, assuming that the appellants have no defence and are not disputing their liability to pay the amount. 10.2 Thirdly, it was also contended that the learned Single Judge while passing the impugned order has not considered the explanations given by the appellants with regard to the two reasons on the basis of which the learned Single Judge passed the order, appointing an auditor to verify the accounts. 10.3 The next submission was that inasmuch as the respondent inspite of the appellants persistent requests/demands that the appellants must be provided with all documents including the bills received by the appellant/company from the advertising media, viz. , newspapers, etc., the company petition has to be dismissed, in fact, for the lapses on the part of the respondent. 10.4 It was also contended that section 443(1)( c ) of the Indian Companies Act, though no doubt empowers the court to make any interim order as it thinks fit on hearing a winding up petition, that impliedly such an order should be only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne of bona fides and with substance. Only for that purpose, the learned Single Judge has appointed an auditor to verify the accounts. 11.5 There is no dispute between the parties that the appellants in both the appeals appointed the respondent as its advertising agent several years back. The claim of the respondent is that in respect of the services rendered, the appellants are liable to pay the amounts indicated in the respective company petitions. There is no disputes between the parties that the agreement was to the effect that in case if the respondent gets more than 15 per cent from the advertising medias such as newspapers, etc., as commission, that amount should be credited to the account of the appellant. It is the case of the respondent that it did not receive any amount as commission above 15 per cent. However, the appellants would not be agreeable until those documents are produced, and according to them, their liability to pay would arise only when those documents are produced and verified. 11.6 In this context, the learned counsel for the respondent contended that assuming for a moment but not conceding that the respondent received 40 per cent commission from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be said that the learned Single Judge has not considered the explanations/objections with regard to these two documents while passing the impugned order. The court need not at this stage pass a detailed and reasoned order which is only an interim order and the same has been passed only to know the correct position and thus to understand the case of the respective parties properly. We refrain from discussing the merits of the case, as it would affect one party or the other at the time of disposal of the company petition. 14. The learned counsel for the appellant next contended that section 443(1)( c ) though empowers the court to make any interim order that it thinks fit on hearing the winding up petition, that can be understood and only referable to the proceedings pertaining to the determination of the financial position of the company and to determine whether it should be wound up or not in the interests of the general body of creditors. According to the learned counsel, as otherwise, by appointing an auditor as in the instant case, the Company Court is converted as a civil court to resolve civil dispute. We do not see any substance in this contention. 15. Section 44 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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