9911796707
TMI Blog2000 (1) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrusted to it by the respondent-company. A meeting was convened on 18-8-1995, at the corporate office of the respondent-company and the respondent agreed and acknowledged an amount of Rs. 100 lakhs. The minutes of the meeting dated 18-8-1995, were also filed as annexure B and all the participants appended their signatures to the minutes of the meeting. Pursuant to the minutes of the meeting, 13 post-dated cheques were issued instead of four cheques issued earlier. When the petitioner-company submitted a cheque bearing No. 0524421, dated 25-1-1996, for realisation at SBI, Kilpauk Branch, Chennai, the same was returned with the endorsement insufficient funds . Similarly all the thirteen cheques presented were returned with the same endorsement. The petitioner-company after receiving intimations from its bank about the dishonour of the cheques, served legal notices under section 138 of the Negotiable Instruments Act, 1881, on 6-2-1996, 2-3-1996, 19-3-1996, 3-4-1996 and 11-4-1996, calling upon the respondent-company to pay the amount mentioned in the said notices. The respondent-company though received notices failed to comply with the demand of the petitioner. The petitioner-company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are not completed before the time stipulated, the petitioner-company would be liable to pay 10 per cent of the amount of the bill submitted by it as penalty. The minutes of the meetings were also filed along with the counter as annexure A. The petitioner-company did not complete the work within the time stipulated and stopped execution of works in August, 1995. The respondent-company denied the meeting which is alleged to have been held on 18-8-1995. The said minutes of the meeting was brought into existence by the petitioner-company in collusion with the ex-director Shri B. Venkatarami Reddy, and Shri Hari Prasad Reddy who used the blank sheet papers which were handed over to him on the representation made by Shri Hari Prasad Reddy that to avoid waste of time and for routine correspondence, he has taken his (deponent) signature on blank sheets. The very fact that all employees are signatories to the meeting except Shri K.L.N. Reddy, Shri Vishweswara Rao, Shri L. Harirama Reddy and Shri Anand, left the respondent-company and joined the petitioner-company in the last week of August and in the month of September, 1995. Shri Hari Prasad Reddy and Shri Y.M. Reddy are presently working ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 21 of 1998 on the file of the First Additional Chief Civil Judge, Nellore, on 17-7-1998, for recovery of a sum of Rs. 2,10,29,178. Apart from the said amount, the petitioner-company is also due a sum of Rs. 67 lakhs as penalty as per the minutes of the meeting dated 28-8-1994, and 31-8-1994. Pending the above suit, the respondent-company filed I.A. No. 819 of 1998 for appointment of an advocate-Commissioner to inspect and submit a report with the help of a technical person with regard to the discrepancies in quantities, estimated costs, rectification of the defects and incomplete structures, etc. The civil court appointed Shri D. Hanumantha Rao, advocate, as the Commissioner. As a counter blast, the petitioner-company also filed a summary suit in O.S. No. 28 of 1998, on the file of the First Additional Chief Civil Judge, Nellore, on 13-8-1998, for recovery of a sum of Rs. 1,64,09,720 claiming it as a debt due to the petitioner-company. The petitioner-company in the said suit suppressed about the filing of suit by the respondent-company. It is further stated that this company petition is filed with an intention to coerce the respondent-company and recover the amounts which are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the work on the assigned project and handed over the possession of the project. But in para 9 of the reply, it is stated that the petitioner-company stopped the execution of further work and measurement of the work was taken and all the bills for the work done were settled in full and finally. This itself is an improvement and contrary to the earliest stand taken by the petitioner-company. Apart from the same, when the suit notice was issued by the petitioner claiming damages and the suit was laid on 28-7-1998, for damages in which an advocate-Commissioner was also appointed to note down the execution of work and defects if any, the petitioner also filed summary suit O.S. No. 28 of 1998, on 13-8-1998, for recovery of Rs. 1,64,09,720, hence, both the suits have to be clubbed together and disputes have to be settled. The petitioner-company also filed I.A. No. 1017 of 1998 in the above suit seeking attachment before judgment and no orders were passed on the said petition, therefore, he filed the present company petition with ulterior motives. Along with the company petition, he filed a company application seeking appointment of a provisional liquidator. This itself shows the mala ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... na fide dispute. In the above case, the respondent denied the supply of basic drugs by the manufacturer through the petitioner. The other defences raised about issuance of statutory notice etc. were not considered, hence, admitted and ordered for winding up. 6. In Sicom Ltd. s case ( supra ), this Court after discussing the observations made by the Supreme Court in Amalgamated Commercial Traders (P.) Ltd. v. A.C.K. Krishnaswami [1965] 35 Comp. Cas. 456, held as follows : "It is settled law that, where there is a bona fide dispute put forward by the company, it would be a valid excuse for non-payment and inability to pay will not be inferred. Where the company produces prima facie proof of facts on which the defence depends and there is likelihood to succeed in point of law, it cannot be said that the company has neglected to pay within the meaning of section 434(1)( a ) of the Companies Act, bona fide dispute implies the existence of a substantial ground for the dispute raised." (p. 323) In the above case, this Court came to the conclusion that the respondent-companies failed to establish that there is a bona fide dispute regarding the claim of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... page 402, the Punjab and Haryana High Court held that the petition for winding up is required to be accompanied by an affidavit in due form. If the affidavit is not in due form, no value can be attached to it and the petition shall be liable to be dismissed. 12. In A.K.K. Nambiar s case ( supra ), the Supreme Court held that the importance of verification is to test the genuineness and authenticity of the allegations and also to make the deponent responsible for the allegations and in essence verification is required to enable the Court to find out as to whether it will be safe to act on such affidavit evidence. 13. In the case of Purushottam Jog Naik ( supra ), the Supreme Court held that the verification of an affidavit filed by a Government officer to prove that a certain order was validly made by the State Government should invariably be modelled on the lines of Order 19, rule 3 of the Code of the Civil Procedure, 1908, whether the Code applies in terms or not and when the matter deposed to is not based on personal knowledge the sources of information should be clearly disclosed. 14. In the present case, the affidavit was sworn by S.K. Gowes and in the body of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany petition with an oblique motive to coerce the respondent-company to pay the amount alleged to be due according to the petitioner. In view of the same, the dispute is of a serious nature between the petitioner and the respondent who filed suits against each other before the First Additional Chief Judge. The disputes with regard to quality of workmanship and damages suffered by the respondent-company and what is the work executed by the petitioner-company and the amount due to the petitioner for execution of the said work should be settled only in a civil court, where proper evidence may be led after proper issues are framed on specific pleadings. In view of this, this Court has no choice but to relegate the petitioner at this stage itself, to the civil court for establishing the amount due and the work executed by it. It is only when such a claim is established in a properly framed suit in a civil court or they can make counter-claim in the suit filed by the respondent-company for damages and for the amounts due to the petitioner for works executed in which both parties will have an opportunity to plead defence in detail, for establishing the amount due or collusion and fraud p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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