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TMI Blog2005 (11) TMI 256X X X X Extracts X X X X X X X X Extracts X X X X ..... oof trusses, for its thermal power plant at Bellary, totally valued at Rs. 23,32,000. The respondent having supplied the required raw material, the petitioner completed the job of fabrication which was jointly inspected by the officials of the respondent-company together with their consultants M/s. M.N. Dastur and Company. The petitioner submitted its first bill dated 26-11-1998 for Rs. 12,55,540.32. Annexure D the second bill dated 24-12-1998 for Rs. 1,39,504.48 Annexure G ; and the third bill dated 24-7-2000 for Rs. 9,681.99, Annexure J , which the respondent failed to pay but deducted T.D.S. of Rs. 25,111, Annexure E , Rs. 3,069 Annexure H and Rs. 213, against the bills, respectively. The petitioner asserts, that the bills were ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the respondent company is altogether a different, independent entity, incorporated under the Act, having nothing to do with M/s. Bellary Steels and Alloys Limited. The order is final and binding on the parties. 6. Sri M.V. Ramanna, learned counsel for the petitioner reiterates the averments set out in the petition to contend that the respondent is due and payable to the petitioner Rs. 13,76,333 a determined, definite and undisputed debt and that the presumption under section 434(1) of the Act, aptly applies to the facts of this case, in the absence of a reply to the statutory notice or payment by the respondent. According to the learned counsel, the respondent is commercially insolvent and incapable of discharging its liabilities. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y ? ( ii )Whether the petition is incompetent and barred by section 10 of the Industrial Undertakings Act ? ( iii )Whether the petitioner having invoked the jurisdiction under the Industrial Undertakings Act culminating in a decree dated 29-9-2003, this petition is maintainable ? 9. There is no dispute that by the work order dated 11-11-1998, Annexure-C the petitioner was entrusted the work of fabrication, valued at Rs. 23,32,000, subject to the respondents supplying material to the petitioner. There is also no dispute that the bills, Annexures D, G and J, submitted by the petitioner were duly certified for payment by M/s. M.N. Dastur and Company. It is also not in dispute that the respondent effected deductions of Rs. 25,111 Ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1993, and having secured a decree, cannot by itself and nothing more, to establish that it is detrimental to the interest of the respondent company, constitute suppression of material facts, an impediment in the exercise of discretionary jurisdiction. In fact the decree is further proof of the fact that the respondent company is due to the petitioner the decretal sum, which remains unpaid. It is trite that the proceedings under the Act is for winding up of the respondent company, for not paying its debts, and not for recovery of monies due to the petitioner. 11. The contention of the respondent that section 10 of the Industrial Undertakings Act, is an express bar to proceedings for winding up of the company, is but a specious plea. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iabilities. 14. By no stretch of imagination, it could be said that the issues in the two proceedings, i.e., in the present petition and that of the proceedings before the Andhra Pradesh Industrial Facilitation Council could be the same though the parties are the same. The principles of res judicata are not applicable to the present case. This contention of the respondent is rejected. 15. The last of the contentions that under section 443(2) of the Companies Act, 1956, the petition is not maintainable as the petitioner exercised an alternative remedy and secured a decree under the Industrial Undertakings Act, 1993, is without any merit. It is no doubt true that under sub-section (2), this Court may refuse to make an order for wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d with the fact that the respondent company has no defence to offer, or that it has not abandoned its objects and is not commercially insolvent, it cannot but be said that it is reasonable to wind up the respondent. The exercise of discretion to refuse to make a winding up order, in the circumstances of the case would amount to travesty of justice. 16. In these circumstances, the presumption under section 434(1) of the Act that the respondent is incapable of discharging its liabilities applied on all its fours. To quote the words of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council, [1951] 2 All ER 587 (HL), in the circumstances, is apposite. "If one is bidden to treat an imaginary state of affairs as real, o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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