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TMI Blog2002 (9) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... y the respondent towards the outstanding amount. These were dishonoured when presented to the bankers of the respondent for encashment with the endorsement exceeds arrangements. Further case of the appellant is that a sum of Rs. 6,12,648 is also due and outstanding payable by the respondent for the supply made by its sister concern SAB Industries Limited which has been taken over by the appellant. Thus the sum of Rs. 1,21,93,169.48 paise was due to the petitioner-company as on 1-4-1999 as detailed hereinabove. When this amount was not forthcoming, appellant claims that after issuing statutory notice under sections 433 and 434 of the Companies Act, 1956 proceedings were initiated for winding-up of the respondent-company in this court vide Company Petition No. 4 of 1999. Incidently, it may be observed that so far filing of this Company Petition and its having been finally disposed of in terms of compromise Annexure P-XV, and on its basis final order Annexure P-XVI, having been passed by the learned Company Judge was not disputed at the time of hearing. However, learned counsel for the respondent pointed out that his client is not bound by Annexure P-XV. Because respondent-company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding including interest, up to 31-12-2000. Therefore, after all the waiver/discount it is found that an amount of Rs. 80,34,200 remains payable to SSL on 1-4-1999 which will include amount of Rs. 6,12,648 towards the cost of material supplied to HTL by SAB Industries Limited, a sister concern of SSL, which has now been taken over by SSL on 1-9-1998. HTL agreed that they will pay interest on Rs. 80,34,200 at the rate of 18 per cent p.a. w.e.f. 1-4-1999 till the clearance of all the dues on reducing balance basis. The agreed account by both the parties is as under : Amount (Rs.) Amount outstanding as on 1-4-1999 as per Winding-up Petition.1,21,93,169.48 Less: Interest waiver up to 31-3-1999 : SSL (P.S.S. Unit)24,05,099.00 SSL (SAB Unit)1,25,859.00 Debit Note reversed28,991.00 Volume Discount by SSL 15,99,020.00 41,58,969.00 Total amount payable by HTL to SSL 80,34,200.00as principal amount. Interest from 1-4-1999 to 31-12-2000 at the rate of 18 per cent p.a. 12,71,170.00 Total amount payable by HTL 93,05,370.00 To discharge its liability as stated above HTL agreed to pay to SSL a total sum of Rs. 93,05,370, by December, 2000, in monthly instal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest. SSL has submitted a Non- Deduction Tax Certificate from Income-tax Deptt. for period up to 31-3-2000 ( i.e. assessment year 2000-2001). Out of total interest of Rs. 12,71,170 interest pertaining to the year ending 31-3-2000 is Rs. 11,25,760. Therefore, no tax on this interest has been deducted. Interest pertaining to April, 2000, and onwards is Rs. 1,45,410. HTL has retained Rs. 31,990 towards Tax Deducted at Source (TDS) on the said amount and cheque for the balance amount has been issued. In case SSL furnishes the Certificate of Non-Deduction of Tax for the assessment year 2001-2002, the retained amount of Rs. 31,990 will be released by HTL forthwith on receipt of the said Certificate. In case SSL is not able to furnish Certificate, TDS Certificate for that amount will be given to SSL. VI. SSL will not initiate or continue any litigation in respect of any amount/matter, whatsoever payable by HTL to SSL prior to the execution of this agreement, against HTL except mentioned in terms of this agreement and/or breach of this agreement and will withdraw all the cases/complaints/petitions etc. filed by them earlier against and HTL and its directors. If SSL does not withdra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arh. (2) M/s. Him Teknoforge Ltd., Plot No. 264-268-A, Industrial Area-I, Pitampura - 454775, District Dhar (MP). (3) M/s. Him Teknoforge Ltd. 167, Usha Nagar Extension, Indore - 453009 (MP). Respondents 4-8-1999 Present: Mr. K.D. Sood, Advocate , for the Petitioner. Mr. R.L. Sood , Advocate, for the Respondent. The petitioner has made an application under Company s Court Rule 9 for placing on record compromise/arrangement arrived at between the parties. Let the same be taken on the record. It is stated by the learned counsel for the petitioner that in view of the compromise/settlement arrived at between the parties, the petitioner does not wish to press the present petition at this stage. Leave granted. The present petition is dismissed as not pressed. Dasti Copy, as prayed for, on usual terms. Coy. A. No. 4/99 Infructuous. Coy. A. No. 5/99 Interim order dated 6-7-1999 is vacated and the application is dismissed as having become infructuous. August 8, 1999Sd/- R.L. Khurana, Judge." What is the effect of these annexures will be dealt with hereinafter on the basis of respective submissions those were urged at the time of hearing of this petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent-company has suffered, although it is not suffering from financial ill-health. As already submitted the net asset value of the respondent-company is on the positive side and huge payments are due to the respondent-company and respondent- company is making all efforts to recover its dues in turn from various companies. The respondent-company has in turn received some post- dated cheques from some of the parties dealing with it and such cheques are likely to be encashed due to it for the preceding months. It is denied that petitioner is entitled to any amount much less the amount of Rs. 41,58,969.00 as has been falsely claimed by it. The said amount was never due from the respondent-company to the petitioner-company and was waived of even at the time of the execution of the agreement dated 21-7-1999, which in any case is not binding upon the respondent-company. Therefore, this amount cannot be claimed again in the present surreptitious and false manner by the petitioner-company. It has calculated and claimed interest at a highly inflated rate which is unknown to the business world. Therefore, also the claim of the petitioner is false. In any case, the correct position has been ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with avoidable expenses to both the parties. We further request you to give us time for personal meeting so that matter can be discussed in detail. Thanking you, Yours faithfully, for Him Teknoforge Limited, Sd/- (Vijay Aggarwal) Managing Director" When respondent-company failed to comply with the notice Annexure P-XVII despite having sent reply vide Annexure P-XX supra, Company Petition No. 5 of 2001 was filed with a prayer to wind-up the respondent- company since case was covered under section 433( e ) of the Companies Act, 1956. Respondent when put to notice, contested and resisted claim of the appellant and urged that no doubt it is passing through financial bad phase, but no case for its winding-up is made out. With a view to support this plea, it was pleaded that its fixed assets are much more than its liabilities. It is providing employment at its units to a large number of workers directly besides providing any indirect employment to a number of other persons. Expecting to receive payments in due course of its business from its customers, cheques were issued, as detailed in the petition by the respondent to the appellant. It has also been pleaded that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... averments made in the company petition have been denied and in rejoinder to such pleadings of the respondent averments made in the company petition were reiterated. With a view to support its case copies of invoices as well as ledger account have also been placed on record. We may notice here that learned counsel for the respondent at the time of hearing of this appeal disputed the copies of the statement of accounts as according to him these are not properly maintained accounts. In the aforesaid background when matter came up before the learned Company Judge on 16-4-2002, following order was passed : "Heard. Admittedly, respondent is being prosecuted in respect of dishonoured cheques to the tune of Rs. 35 lakhs in various courts. Out of this amount of Rs. 35 lakhs, a sum of Rs. 5 lakhs has admittedly been received by the petitioner-company. Only a sum of Rs. 30 lakhs on the basis of dishonoured cheques remains to be paid. An offer has been made on behalf of the respondent that this outstanding amount of Rs. 30 lakhs will be paid by the respondent on or before 31st December, 2002. It has further been stated on behalf of the respondent that in case the respondent failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above. He submitted that not only payments of some of the dishonoured cheques were made, but cost of litigation was also paid. According to him, respondent is estopped from challenging the legality, correctness or otherwise of either Annexure P-XV, the agreement which resulted in passing of the order in Company Petition No. 4 of 1999 vide Annexure P-XVI. According to him, cheques being dishonoured is not disputed. Details of the position of cases as existed on the day of the filing of the Company Petition No. 5 of 2001 are given in Annexure P-XXI which also is not disputed, as according to him, if the cheques had been unauthorisedly issued or agreement P-XV had not been entered into between the parties and what is alleged by the respondent is correct, then there was no need for its having paid substantial amount as detailed in paragraph 19 of the Company Petition. This factual position having paid substantial amount is not disputed by the respondent in its reply as is evident from the extracted pleadings supra . According to him, estoppel is clearly attracted to the facts of the present case and all the pleas to the contrary questioning the authority to execute Annexure P-XV a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Petition is nothing but a coercive and pressurising technique deployed by the appellant. According to him, this is a temporary phase because of overall recession in the industrial world throughout the country in particular and world over in general. According to him, order passed by the learned Company Judge needs to be upheld. He admitted the earlier litigation in Company Petition No. 4 of 1999 and how it came to an end. Further according to him, Company Petition must go for want of legal and proper notice under section 433, as Annexure P-XVII, according to him, includes debts which were time-barred and further includes interest which is highly excessive being penal in character. He also questioned the legality and correctness of the affidavit filed in support of Company Petition No. 5 of 2001 being not in Form No. 3 attached to Company (Court) Rules, 1959. Despite Annexure P-XX, Mr. R.L. Sood urged that his client is well advised being within its rights to dispute its liability. Memorandum of understanding between the appellant and SAB Industries vide Annexure P-V was also questioned on behalf of the respondents as having been entered upon without complying with the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in withdrawal of Company Petition No. 4 of 1999 or by its reply Annexure P-XX supra is purely an afterthought, besides being untenable in the facts of this case. In case respondent was not bound by Annexure P-XV, why it would issue the cheques and then get more than 50 per cent of the agreed amount to be cleared. Similarly, if claim made by the petitioner in Annexure P-XVII i.e. the notice under sections 433 and 434 of Companies Act was not correct and based on facts and the amount being not due and outstanding. It would have refuted the contents of the same. Instead of there being any such thing, Annexure P-XX is self-explanatory. Therefore, all the pleas to the contrary with reference to these two documents have been raised simply to be rejected. In case Annexure P-XV was the result of arm-twisting or coercion etc., it could have been immediately challenged after its execution. Record shows that it was entered upon between the parties on 21-7-1999 and till the filing of the Company Petition No. 5 of 2001, respondents never disputed the same. Rather respondent made payments from time to time of Rs. 53 lakhs as per terms of Annexure P-XV. It may be pointed out that it is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arts of India Ltd. [2001] 106 Comp. Cas. 700 . In TDICI Ltd. v. Neptune Inflatables Ltd. [1999] 1 CLJ 240 (Mad.), it was held that there is no presumption regarding inability to pay. However, on facts admission of debt being there in correspondence and inability to pay despite undertakings for early payment, advertisement of petition was ordered. In National Conduits (P.) Ltd. v. S.S. Arora AIR 1968 SC 279, what was held was that on admitting winding-up petition, court is not forthwith required to advertise the same. Admittedly in the Company Petition No. 5 of 2001 while admitting the petition, the learned Company Judge had also postponed the advertisement. As such no benefit can be derived by the respondent from this judgment. Mr. R.L. Sood urged that mere inability to pay its debt by itself is no ground to order winding-up, unless it is also shown prima facie that the defaulting company has lost its substratum and it cannot be revived. So far legal position is concerned, there is no dispute. The question that needs to be seen is whether this is a bona fide dispute or not. So far sum of Rs. 30 lakhs which the respondent has been called upon to deposit and agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p petition are where dispute existed and the court rejected such winding-up petitions. For the view we have taken on the basis of the admitted facts and documents as well as pleadings of the parties, there is no bona fide dispute between the parties so far principal amount is concerned. Thus, reliance placed on Anand Steel v. Bharat Earth Movers Ltd. [1987] 3 CLJ 175 (Kar.) and K. Suresh Shenoy v. Cochin Stock Exchange Ltd. [1988] 3 CLJ 350 (Ker.) is of no consequence and does not in any manner improve the case of the respondent. So far challenge to affidavit in support of the Company Petition is concerned, we would not have gone into this question. However, since it has been raised, therefore, we are going into it. Reliance in this behalf was placed on behalf of respondent on Malhotra Steel Syndicate v. Punjab Chem-Plants Ltd. [1989] 2 CLJ 261 (Pun. Har.). This is a judgment on its own facts. In this case, parties were relegated to the remedy of civil suit because it was found as a question of fact that there was a bona fide dispute between the parties and winding-up petition was not the proper remedy. Similarly, the decision reported in V.V. Krishna Iyer Sons ..... X X X X Extracts X X X X X X X X Extracts X X X X
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