9911796707
TMI Blog2006 (9) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the said modifications pursuant to letter of indent dated January 23, 1999. The petitioner was paid an advance of Rs. 25,480. As per the petitioner, the petitioner submitted three bills for the supplies made and work done of the repairs of the said cooling towers. Date Bill No. Amount 12.04.1999 99/010 8,829.00 10.05.1999 99/005 3,28,907.00 10.05,1999 99/015 80,034 Total 4,17,770.00 As per the petitioner the respondent made a payment of Rs. 2,37,820 to the petitioner on various dates after deducting a sum of Rs. 520 towards TDS and deposited a sum of Rs. 7,544 towards TDS on June 2, 1999 and furnished a TDS Certificate in Form No. 16A dated June 4,1999. As per the petitioner as against the total amount of the bills of Rs. 4,17,770, the petitioner has received a sum of Rs. 2,37,820 including the advance payment of Rs. 26,000 and the balance due by the respondent is Rs. 1,79,950 which after deduction of TDS of Rs. 7,544 works out to Rs. 1,72,406. The case of the petitioner is that the petitioner called upon the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the company for a period of three weeks thereafter neglects to pay the sum or to secure or compound for it to the reasonable satisfaction of the creditor. The contention of Mr. Sudin Usgaonkar, learned counsel on behalf of the respondent is that the provision of section 434(1)( a) is mandatory and admits of no exception. On the other hand, the contention of Mr. V.A. Lawande, learned counsel on behalf of the petitioner is that the respondent having replied to the said notice, the respondent is deemed to have waived the provision of section 434(1)( a ) of the Act. Learned counsel on behalf of both the parties have placed reliance on several authorities. Mr. Lawande has placed reliance on the case of Dhian Singh Sobha Singh v. Union of India AIR 1958 SC 274, wherein the hon'ble Supreme Court observed, with reference to notice under section 80 C.P.C. that the terms of the notice should not be scrutinised in a pedantic manner or in a manner completely divorced from common sense and referring to Pollock C. B. in Jones v. Nicholls [1844] 13 M W 361; 153 ER 149 as well as a decision of this court in Chandulal Vadilal v. Government of the Province Bombay, AIR 1943 Bom. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the registered office of the company. The submission of Mr. Lawande has been squarely dealt with by the Delhi High Court in the case of State Black Sea Shipping Co. v. Viraj Overseas P. Ltd. [2005] 125 Comp. Cas. 831 wherein it was held that the fact that a reply was sent by the respondent-company to the statutory notice of the petitioners and the fact that no objection was taken in the said reply could not be taken into account because the statutory fiction had to be strictly construed and if a statutory requirement based on a statutory fiction is to be construed strictly, the petition had to be dismissed as not maintainable. The Delhi High Court considered various judgments, mentioned therein including that of Bukhtiarpur Bihar Light Railway Co. Ltd. v. Union of India [1954] 24 Comp. Cas. 507 (Cal.) and that of this court in the case of N. L. Mehta Cinema Enterprises P. Ltd. v. Pravinchandra P. Mehta [1991] 70 Comp. Cas. 31. In the case of B. Viswanathan v. Seshasayee Paper and Boards Ltd. [1992] 73 Comp. Cas. 136 (Mad) it was held that unless the statutory notice served on a company under section 434 of the Companies Act is in conformity with the mandatory requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite of various correspondences addressed to the petitioner as regards negligent workmanship of the petitioner and the respondent having expressed surprise that the repairing done by the petitioner had failed within a period of 45 days and in spite of the petitioner having been informed to visit the plant on May 27, 1999, to carry out performance of the repaired cooling tower cell and that the deflectors had developed leakages which were required to be attended to by the petitioner, etc., the respondent was totally shocked and taken aback when they received a letter from the petitioner dated July 26,1999, whereby the petitioner erroneously and falsely contended that an amount of Rs. 1,72,406 was due and payable by the respondent to the petitioner and therefore the respondent by its reply dated July 28, 1999, informed the petitioner that the balance amount due to the petitioner was only Rs. 13,502 and not Rs. 1,72,406 as claimed by the petitioner and after the petitioner addressed the letter dated July 30, 1999, with claims that certain amounts were due and payable towards certain accounts such as treated timber, long target nozzles, extra material used and FRT Louvers, the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d sum of Rs. 46,171, thus admitting its liability to pay a sum of Rs. 46,171 only. In other words, except for accepting the liability of Rs. 46,171, the respondent did not accept the liability to pay any further amount, as claimed by the petitioner and the correspondence exchanged between the petitioner and the respondent shows that any liability over and above Rs. 46,171 has been disputed by the respondent. Nevertheless, the entire case of the petitioner as regards the demand of liability by the respondent is based on the certificate of TDS in Form No. 16A (Exhibit "D" dated June 4, 1999) on which TDS of Rs. 7,544 has been shown as paid against an amount of Rs. 3,77,220. There is no dispute that the said certificate also shows that a sum of Rs. 520 was paid as TDS on the advance payment made to the petitioner of Rs. 26,000. To repeat, the certificate shows that a tax in the sum of Rs. 7,544 has been deducted as against an amount of Rs. 3,77,220. No doubt the respondent has not explained as to how and in what circumstances the said figure of Rs. 3,77,220 came to be arrived at on which Rs. 7,544 was deducted as tax at source. The total amount payable, as per the petitioner, was Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te means of seeking to enforce payment of a debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under the circumstances may be stigmatised as a scandalous abuse of the process of the court" (Amalgamated Commercial Traders P. Ltd. v. A. C. K. Krishnaswami [1965] 35 Comp. Cas. 456, 463 (SC). "The jurisdiction of the court under section 433 of the Companies Act, 1956, is not that of a court which is essentially meant for settling money disputes between parties, but is to subserve the object of winding up of companies which have not paid their debts' or which are unable to pay their debts. Therefore, the first pre-requisite must be to establish prima facie a debt against the respondent. But when a claim or debt is disputed, the proper forum for that is a civil court. Where, therefore, admittedly, there was a genuine dispute as to the liability of the respondent-company to pay the difference between what has been admitted and what has been claimed, it would not be proper to decide the case in the summary proceedings under section 433 ( Kanmdenu Enterprises v. Vivek Texti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
