9911796707
TMI Blog2000 (10) TMI 923X X X X Extracts X X X X X X X X Extracts X X X X ..... ement came to be executed between the parties on October 31, 1996. The estimated cost of construction was Rs. 2,32,54,375. The work was started by the petitioner. Subsequently, the respondent-company intended to make certain additions to the abovesaid work (project). In order to give separate identity, the work already awarded to the petitioner was termed as first phase and the additions thereto were termed as second phase. The petitioner submitted additional tender in respect of second phase quoting the rates 55 per cent higher than the one quoted for the first phase. The work of second phase, which was a non-scheduled work, was not covered by the rates in respect of the work of the first phase. The rates for such non-scheduled work were to be agreed upon and accepted by the parties. In view of the inclusion of the work of second phase, the original period of 18 months fixed for the completion of the work, was raised to 24 months. 3. While the work of first phase was started by the petitioner in November, 1996, the work of the second phase was started in May/June, 1997. During the execution of the works, the petitioner pointed out to the respondent-company that : ( a )the ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sation advance had been deducted twice. Thus, the total outstanding amount is to the tune of Rs. 1,53,00,000. This amount did not include the element of interest claimed by the petitioner. The chairman-cum-managing director of the respondent-company had assured that the matter pertaining to interest would be settled by way of lump sum payment to the petitioner and that nothing in this regard was required to be reduced in writing. Thus, the payment of interest and the claim in respect thereof was left to the discretion of the chairman-cum-managing director of the respondent-company. The petitioner has claimed lump sum interest of Rs. 20,00,000 on the outstanding amount of Rs. 1,53,00,000. In pursuance of the settlement arrived at on December 10, 1998, a sum of Rs. 5,00,000 was paid to the petitioner by the respondent-company vide cheque dated December 28, 1998. The balance amount was agreed to be paid on or before January 10, 1999. However, no amount was paid by the respondent-company. Left with no other alternative, the petitioner served a notice upon the respondent-company under section 434 of the Act calling upon it to pay the amount due within 21 days. Despite such notice, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 11. It is well settled that a winding up petition cannot be stressed to seek enforcement for the realization of debt where there exists a bona fide dispute. The Company Court is required to judge whether the defence put up by the company is bona fide and is in good faith. It has further to be seen that the defence raised is one of substance and the same prima facie is likely to succeed. 12. The Apex Court in Harinagar Sugar Mills Co. Ltd. v. M.W. Pradhan [1966] 36 Comp. Cas. 426 has held : " A winding-up petition is a perfectly proper remedy for enforcing payment of a just debt. It is a mode of execution which the Court gives to a creditor against a company unable to pay its debts ." (p. 430) 13. It was further observed in the following terms, at page 430 of the report : "...It is true that a winding-up order is not a normal alternative in the case of a company to the ordinary procedure for the realisation of the debts due to it ; but nonetheless it is a form of equitable execution. Propriety does not affect the power but only its exercise..." (p. 430) 14. In Madhusudan Gordhandas Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was neither the chairman-cum-managing director nor competent and authorised to accept the liability for and on behalf of the respondent-company. In support of his contention learned counsel has drawn the attention of this court to the annual reports for the years 1995‑96 and 1996-97 of the respondent-company (annexures R1 and R2 respectively to the reply by respondent No. 1) wherein Smt. Pamila Syal, respondent No. 3, has been described as the managing director of the respondent-company. Even the petitioner himself in his petition has described respondent No. 3. Smt. Pamila Syal as the managing director of the respondent-company. 20. It is the admitted case of the petitioner himself that the matter relating to difference of the rates relating to first phase and second phase would be settled by the chairman-cum-managing director of the respondent-company. Clause 15 of the agreement dated October 31, 1996, admittedly entered into between the parties, also records : "That there is no provision for any arbitration in this agreement and in the case of any dispute arising out of this work, the decision of the vice-chairman (projects)/chairman-cum-managing director will be f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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