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TMI Blog2011 (5) TMI 846X X X X Extracts X X X X X X X X Extracts X X X X ..... SH ROY, J. Ms. M. Hazarika, Ms. A. Ajitsaria and Ms. J. Hazarika for the Petitioner. G.N. Sahewalla, Md. Aslam, D. Senapati, J. Bora and K. Kalita for the Respondent. JUDGMENT AND ORDER (ORAL) 1. Heard Ms. M. Hazarika, learned Senior Counsel for the petitioner. The respondent company is represented by Mr. GN Sahewalla, learned Senior Counsel. 2. The petitioner seeks winding up of the respondent company under sections 433 and 434 of the Companies Act, 1956 on the ground that the respondent/company is unable to pay its debt or should be considered as deemed unable to pay its debts, on demand made by the petitioner. 3. The petitioner was engaged as a transporter by the respondent company, to carry construction materials from different places like Kolkata, Durgapur etc. to the factory site of the respondents at Lumshnong of Jaintia Hills in the State of Meghalaya. According to the petitioner, the respondent cleared all the carriage bills raised by the petitioner up-till 25-4-2009. But since 26-4-2009, the respondent dishonoured the petitioner's bills and accordingly an amount of Rs. 44,58,486 became due from the respondent. Thereafter, on 11-9-2009 a notice under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be a bona fide defence of the respondent, in a winding up proceeding. 5.4 The learned counsel finally submits that even assuming that the petitioner is required to compensate the respondent for the misappropriated materials amounting to Rs. 25,73,541, considering that the petitioner is entitled to receive Rs. 44,58,186 as transportation charge, even after squaring accounts for the balance due, the winding up petition is maintainable. 6.1 Mr. GN Sahewalla, learned senior counsel submits that the respondent company is a part of a large corporate group of about 8 functioning companies and the project value of the proposed cement company set up by the group is worth about Rs. 614 Crores. The learned counsel accordingly submits that the respondent is a solvent and going concern and cannot be deemed to be insolvent by application of section 434 of the Companies Act. He contends that the petitioner's claim is a highly disputed claim and considering the respondent's counter-claim, the invocation of the Company Court's jurisdiction is inappropriate in the present case. 6.2 The petitioner as the appointed transporter was responsible for safe transshipment of the construction mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent in paragraph 3(xiv), (xv), (xvi ), (xvii) and (xviii) of the affidavit-in-opposition. The averments show how the goods were pilfered during transit and the steps taken by the respondent to catch the culprits in the act. The 'idle labour' expenses forced upon the respondent due to short delivery of material is also reflected in the counter affidavit of the respondent, the relevant portion of which are extracted hereinbelow for ready reference : "3.....(xiv) But from the last 2 years, the company used to receive complaint from their site office, at Meghalaya, that the petitioner was supplying less materials than consigned. Due to shortage in materials delivered by the petitioner the company had to stop the construction work of the factory occasionally and subsequently same was found to be as a consequence of the wrongful activities of the petitioner, the company suffered may idle days, cost of which has been assessed as Rs. 51,55,532 only and lien has been exercised by the company over said amount against the petitioner who is liable to pay the same to the company in the following manner : Sl. No. Particulars Bill dates Amount 1. Idle working labour charges charged b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod, respondent company had asked Mr. Ashoke Kumar Agarwal, to provide the details of Transport engaged by them for re-transport of the material, which he could not provide for investigation with a fear of truth outcome. (f)During our investigation respondent company came to know that this practice were used by those persons for long Mr. Gurucharan owner of VFR Hardware, Jowai Mr. Mahendra, and Manager of 7th Mile Petrol Pump use to purchase these stolen materials till date. (g)Lion share of the realization was handed over to Mr. Ashoke Kumar Agarwal. All these were as per the statement dated 30th June, 2009 of Mr. Shiv Shai, one of the accused involved in the racket. (h)With an intention of delaying the process Mr. Ashok Kumar Agarwal called up many times to settle the matter out of Court and failing to do so respondent company had lodged FIR on 22nd July, 2009 with the Officer -in-charge, A.D. Camp, P.S.- Lumshnong, Jaintia Hills, Meghalaya. (xvii) The men of the petitioners had confessed and admitted by issuing a letter of admission of their misdeeds and copies of the same are annexed hereto and marked as ANNEXURE-D. (xviii) That the company have came to know the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a matter of evidence as to the amount of additional expenditure that respondent incurred on account of "idle labour" for short delivery of goods by the transporter, the contention raised by the respondent on this count cannot, in my view, be considered to be non-bonafide. 13. While considering a winding up petition on an allegation that the company is unable to pay its debts, the first imperative is to examine whether the debt is beyond dispute. If the company raises a bona fide dispute, the petitioner can't be placed in the category of a creditor of the company. If there are materials and substantive basis for the dispute raised by the company, it wouldn't be appropriate for a Company Court to proceed in a winding up proceeding. Undoubtedly the Company Court should look into the causes of refusal by the company to pay, before coming to that conclusion that, the company's refusal is supported by a reasonable cause or a bona fide dispute in which the dispute can only be adjudicated by a trial in a Civil Court. 14. The Company Court while exercising powers under sections 433 434 of the Companies Act is not in a position to decide who defaulted in discharging its obligation und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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