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TMI Blog2011 (3) TMI 1468X X X X Extracts X X X X X X X X Extracts X X X X ..... antial one and it is neither dishonest nor moonshine. petition is dismissed X X X X Extracts X X X X X X X X Extracts X X X X ..... your credit, supply of shall be made to you. This is for your information. Thanking you For Bharat Aluminium Company Limited Sd/- Associate Manager (Finance)" [Emphasis supplied] 7. It is the petitioner's case that after they objected to the aforesaid adjustment, the respondent not only accepted the petitioner's stand but also dispatched to petitioner 26.379 metric tons of aluminium wire rods, ingots and another aluminium products. But later on respondent contrary to its earlier stand, recalled the goods dispatched from Raipur. 8. Being aggrieved by the aforesaid decision, the petitioner on 22-3-2006 filed a suit bearing Suit No. 1071/2006 in the Bombay High Court. 9. On 7-7-2006, petitioner also issued a winding up notice to the respondent. As there was no response to the said winding up notice, the petitioner on 9-4-2008 filed the present winding up petition. 10. Mr. Krishna Kumar, learned counsel for petitioner submitted that petitioner-company and M/s. Anish Metals Pvt. Ltd. are not group companies. He stated that MOU had been executed by different companies with respondent to avail of certain discount offered by the respondent only on bulk purchases. According to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent could not have adjusted set off debts of Anish Metals against petitioner's credit. Mr. Nayar emphasised that group accounts were kept and dealings between respondent and petitioner as well as other companies were as group companies. 16. Mr. Nayar also denied that the group transaction came to an end after Settlement dated 31-3-2005. According to him, the Settlement was related to interest on account of late issuance of credit notes by respondent, excess interest charged etc. Mr. Nayar stated that the said Settlement nowhere mentioned that group transaction had come to an end or that the Settlement was to settle all liabilities in this regard. According to him, the Settlement itself proposes a fresh reconciliation statement to be made and, therefore, it was open ended. 17. Mr. Nayar emphatically denied that the respondent's conduct was improper. In any event, he pointed out that the said issue was sub-judice in the suit filed by the petitioner in the Bombay High Court. 18. Mr. Nayar also laid emphasis on the fact that a learned Single Judge of the Bombay High Court had specifically found that the petitioner was not entitled to any interim relief as disputed questions of fa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held to the credit of the suit, if any. [see Ambala Bus Syndicate Pvt. Ltd. v. Bala Finance Pvt. Ltd. 1983 (2) SCC 322 and Civil Appeal No. 720 of 1999 arising out of SLP(C) No. 14096 of 1998 - M/s. Nishal Enterprises v. Apte Amalgamations Ltd., decided on February 5, 1999]; (vii)Generally speaking, an admission of debt should be available and/or the defence that has been adopted should appear to the Court not to be dishonest and/or a moonshine, for proceedings to continue. If there is insufficient material in favour of the petitioners, such disputes can be properly adjudicated in a regular civil suit. It is extremely helpful to draw upon the analogy of a summary suit under Order XXXVII of the Code of Civil Procedure. If the Company Court reaches the conclusion that, had it been exercising ordinary original civil jurisdiction it would have granted unconditional leave to defend, it must dismiss the winding up petition." 21. In the present case, I do not have to lift the corporate veil as petitioner and its group companies had throughout been representing themselves to be a single economic entity. In fact, the Memorandums of Understanding clearly show that they were executed betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised Dealership for Rolled Products 1. Name of the firm Pankaj Extrusion Limited. ** ** ** Applied for any other name 1. Anish Metals Pvt. Ltd. sister firms, etc., if yes 2. Pankaj Metals Pvt. Ltd. specify 3. Pankaj Aluminium Ind. Ltd. 4. Hiren Aluminium Ltd. ** ** ** For Pankaj Extrusions Ltd. Sd/- Authorised Signatory/Director" Applicants Signature Name: (D)Bharat Aluminium Company Limited P.O Balconagar, korba-495684 Chhattisgarh Application form for Authorised Dealership for Rolled Products 1. Name of the firm Pankaj Metals Private Ltd. ** ** ** Applied for any other name 1. Anish Metals Pvt. Ltd. sister firms, etc., if yes 2. Pankaj Metals Pvt. Ltd. specify 3. Pankaj Extrusion Ltd. 4. Hiren Aluminium Ltd. ** ** ** For Pankaj Metal Private Ltd. Sd/- Director Applicants Signature Name: (E)Bharat Aluminium Company Limited P.O Balconagar, korba-495684 Chhattisgarh Application form for Authorised Dealership for Rolled Products 1. Name of the firm Hiren Aluminium Limited. ** ** ** Applied for any other name 1. Anish Metals Pvt. Ltd. sister firms, etc., if yes 2. Pankaj Metals Pvt. Ltd. specify 3. Pankaj Alum. Inds. Ltd. 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh negotiation of LC documents against Invoice No. 02/8959 dated 31-10-2003 for Rs. 818798. Dear Sir, ** ** ** We would also like to draw your kind attention regarding our refund of Rs. 15,68,538 in the account of Hiren Aluminium Ltd. We have been following up the matter with your office since last so many months for the issuance of pending credit notes but regret to mention that, till date we have not even received the copies of the credit notes which were settled by our representatives with your SAG section at Korba during Nov' 03. ** ** ** .............Please confirm us in writing regarding the adjustment of this excess payment amount of Rs. 818798 against invoice number 02/9232 dated 9-11-03 for Rs. 907469, so that we can make the balance payment of Rs. 88671 against the said invoice as being confirmed by you. Kindly look into the matter and respond us immediately considering the urgency and seriousness of this issue. This time as a special case we are releasing the payment, however, this type of lapses should be avoided in future. Thanking You. Yours faithfully, For Pankaj Aluminium Industries Ltd. (Director)"[Emphasis supplied] 26. The doctrine of single econo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interim prayer asked for by the petitioner in its suit on the ground that it would amount to grant of final relief and further disputed questions of fact could only be decided after the parties had led their evidence. The relevant portion of the order passed by the learned Single Judge of the Bombay High Court is reproduced hereinbelow:- "As set out hereinabove, the main dispute raised by the plaintiff in the suit, is that the defendants are not entitled to appropriate Rs. 3,38,16,720 or any other amount therefrom towards the dues from Anish Metals Pvt. Ltd. from the Plaintiff or any of its sister concerns and have sought a declaration to that effect in terms of prayer clause (b) of the plaint/suit. The defendants have joined an issued with the Plaintiff by disputing the stand taken by the Plaintiff and have made submissions justifying their action/conduct. At the final hearing of the suit, an issue whether the Defendant was entitled to adjust the said amount, will have to be framed and decided after evidence of the parties is adduced and arguments advanced." 30. It is pertinent to mention that the aforesaid finding of the learned Single Judge has not been disturbed either by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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