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TMI Blog2013 (9) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... terms and conditions. Clause 9 of the agreement provided that the respondent shall pay a sum of Rs. 1.20 crores to the petitioner for the construction and that the bills as per approved quotation presented by the petitioner shall be cleared as per the schedule attached to the agreement. Clause 13 provided that the respondent can reduce or extend the covered area of the building, in which case the rate will be calculated at Rs. 700 per sq.ft for civil construction, Rs. 60 per sq.ft for electrical work and Rs. 75 for sanitary and plumb work. Another agreement was entered into between the petitioner and the respondent on 4.6.2008. The terms and conditions of this agreement were substantially the same as in the earlier agreement. However, clause 9 provided that the respondent shall pay a sum of Rs. 60 lakhs to the petitioner for the construction. Clause 13 provided that the respondent can reduce or extend the cover area of the building and in such a case the rate for the construction will be Rs. 450 per sq.ft for civil works, Rs. 35 per sq.ft for electrical work and Rs. 75 for sanitary and plumbing work. 4. On 27.4.2012 the petitioner sent a statutory notice under section 433/434 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e an additional affidavit along with the statement of account. Permission was granted and the additional affidavit was filed along with the statement of account. 7. The contention of the learned counsel for the petitioner is that the respondent was due to pay Rs. 1.80 crores under both the agreement, that the total cover area built was 13,498.85 sq.ft @ Rs. 1285 per sq.ft and the total work done amounted to Rs. 2,23,34,998/-. Out of this amount the respondent had paid Rs. 50,76,246/- by cheques and Rs. 76,25,000/- in cash, leaving a balance of Rs. 96,33,752/-. It was submitted that the respondent itself admitted liability of Rs. 1,27,00,246/- which it actually paid and this fact was also recorded in the architect's certificate and therefore it is not open to the respondent to contend that the total value of the contract was only Rs. 1.20 crores. It was further submitted that whatever defects in the work that were pointed out by the respondent were removed by the petitioner between October, 2009 and June, 2010 and the respondent had also occupied the premises and the petitioner cannot be held liable for the defects which arose due to wear and tear and lack of maintenance on the par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to all aspects of the contract. Moreover, the petitioner itself has admitted that there is a provision for arbitration in clause 12 of the agreements dated 22.11.2007 and 4.6.2008 under which the architect S K Sami was the sole arbitrator and even in the letter written by it to the arbitrator on 29.12.2012 it has not been made clear by the petitioner as to what is the liability of the respondent. Reliance was also placed on the certificate issued by the arbitrator S K Sami who proceeded on the basis that the total value of the contract was only Rs. 1.20 crores; even as per the arbitrator (Annexure R8) the total work done by the petitioner was of the value of Rs. 1,45,31,295/- and deducting the payment of Rs. 1,27,00,246 made by the respondent, the respondent was liable to pay only Rs. 18,31,049/- to the petitioner that too after removal of defects in building construction, receipt of fire-NOC challan, receipt of WCT and service tax and power installation challan etc. It is thus submitted that complicated questions of fact and law arise in this case which cannot be gone into by the Company Court and would be outside the scope of section 433(e) of the Act. 9. In his brief rejoinder, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... editor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding up petition as a means of forcing the company to pay a bona fide disputed debt." Again in para 31 it was held as under : "Where the company has a bona fide dispute, the petitioner cannot be regarded as a creditor of the company for the purpose of winding up. "Bona fide dispute" implies the existence of a substantial ground for the dispute raised. Where the Company Court is satisfied that a debt upon which a petition is founded is a hotly contested debt and also doubtful, the Company Court should not entertain such a petition. The Company Court is expected to go into the causes of refusal by the company to pay before coming to that conclusion. The Company Court is expected to ascertain 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." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to the petitioner as he rejected the goods supplied by the petitioner after a long period of one year. This is a factual finding and per se does not support the stand of the petitioner before me. In the present case, there are several other issues along with the issue whether the respondent can point out to the defects in the construction after a lapse of long period, and withhold payment. The other judgment of this Court is that of the Division Bench in Joti Prasad Bala Prasad Vs. A.C.T. Developers (P.) Ltd. (1990) 68 Company Cases 601. I do not see how this judgment is relevant to the present case. In the cited case, the company judge had found that the defence raised by the respondent was without any merit, but still the winding up petition was dismissed. This decision of the company judge was reversed by the Division Bench. This case has nothing to do with the case before me. Lastly a judgment of the learned Single Judge of the Bombay High Court In The Matter of Ispat Industries Ltd. (2005) 2 Company LJ 235 was cited in support of the contention that a mere discrepancy between the amounts claimed in the statutory notice and the amount actually due would not entitle the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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