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TMI Blog2015 (2) TMI 1157X X X X Extracts X X X X X X X X Extracts X X X X ..... een saying is that the petitioner should render complete and material particulars of all transactions, invoices etc. between the parties; and to come forward for a proper reconciliation of accounts. Keeping in view the unique and peculiar circumstances of this case, especially the type of notice for winding up that was issued by the petitioner to the respondent, do not think that the respondent has taken any unreasonable position. All this, coupled with the nature of the threat held out by the petitioner in the concluding paragraph of the notice of demand, makes it obvious that the petitioner has sought to abuse the jurisdiction of this Court with a view to coercing and pressurising the respondent to pay its demands, including interest demanded by it, without standing the test of evidence and cross-examination or even paying the court fee to recover its dues from the petitioner at civil law. - CO.PET. 425/2013 - - - Dated:- 23-2-2015 - MR. SUDERSHAN KUMAR MISRA, J. For The Petitioner : Mr.Aman Leekha, Advocate For The Respondent : Mr. Rajiv Bakshi, Advocate SUDERSHAN KUMAR MISRA, J. (ORAL) 1. This petition seeks winding up of the respondent/Messrs Kanwa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s was supplied by the petitioner to the respondent. In its reply to the winding up petition, the respondent also admits to having paid the petitioner ₹ 1,60,73,297/- against the material supplied by the petitioner; and at the same time, it also claims nothing further to be due from it to the petitioner. 7. A perusal of the statutory notice of the petitioner dated 01.05.2013 shows that it gives no material particulars as to how the debt or liability of the noticee/respondent arises. In fact, it is only in the winding up petition that the petitioner has, for the first time, chosen to provide details of invoices etc. to substantiate its claim against the respondent. In substance, the notice of winding up shows nothing more than a one line statement that an amount of ₹ 26,45,065.75/- is due. The relevant para of the legal notice in this regard is as under; 3.That a perusal of book of accounts maintained in the regular course of business show an outstanding amount of ₹ 26,45,064.75 (Rupees Twenty Six Lac Forty Five Thousand Sixty Four and Seventy Five paise Only) as on 30.04.2013. The same however does not completely account for the interest element payable on a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the respondent company in the account maintained by the petitioner. I am afraid, I do not agree with this. Reading of paragraph 3 of the notice does not indicate any such thing and such an averment has no basis whatsoever. 10. In addition, I find an interesting inclusion in the notice of winding up, which, at least, till date I have not come across; that is as follows; Additionally, we have also advised our client to apprise various Banks, Financial Institutions, Credit Rating Agencies, Suppliers and Other Regulatory Bodies regarding your financial incapacity as a note of caution while dealing with your company. Ex facie, this is nothing but a threat to defame a company with the aim of extracting its claims by this method. 11. Obviously, when confronted with such a notice, the respondent has chosen to respond on 03.06.2013 as follows; .3. That the contents of Para no.3 of the legal notice are wrong and denied. It is denied that ₹ 26,45,065.75 (Rupees 'Twenty Six Lac Forty Five Thousand Sixty Five and Seventy five paisa only) is pending against my client. It is submitted that my client has already made the entire amount/payment to your client. The res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d letter dated 29.01.1992 in which the parties settled for a specific amount; which the respondent s counsel claimed should be ignored because, according to him, it was procured. However, since there was no further explanation coming with regard to the admission in that letter, excepting to state that the said letter or document was procured, the court concluded that no bonafide dispute existed between the parties in view of that letter of 29.01.1992, in which the respondent had admitted the debt due. It was in the context of those facts that the court concluded that the respondent s reply to the petition seeking winding up neither discloses a substantial defence nor a bonafide dispute; and, it was in that context, that the court stated that mere denial of liability is no defence what to talk of a bonafide defence. All this is quite different from a denial to a bald claim, raised in a notice of winding up without giving any particulars of the relevant facts and circumstances under which that claim had arisen. Furthermore, Mayar Trader s case (supra) does not even examine the question raised here, which is with regard to the nature of the notice of winding up / demand that was sent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to my client for various supplies made by it to you is completely false, baseless and concocted on the face of it. Though an amount of ₹ 26,45,064.75 (Rupees Twenty Six Lac Forty Five Thousand Sixty Four and Seventy Five paise Only) alongwith interest @ 16% per annum stands admitted by you on the basis of material supplied by my client and duly received at your end, on the basis of invoices raised from time to time, you have not made any payments to my client till date and further you have also not mentioned as to in what manner the said payments, if any, have been made and at what point of time. Therefore your defense regarding payments having been made is absolutely meaningless. This is nothing but an attempt on your part to further delay the admitted outstanding payment. The fact of the matter remains that you have admitted the debt and are liable to pay the same. To my mind, even in its rejoinder, the petitioner merely goes on to reiterate its own position without providing any materials with regard to the details of specific invoices that are allegedly raised, the amount raised against each invoice, the amount outstanding, if any, etc. Significantly, the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the respondent in its reply to the petitioner s notice of winding up. And therefore also, it is nothing but an afterthought. 19. It bears repetition that the petitioner has adopted what, to my mind, appears to be a very novel approach. To begin with, he has raised a bald demand in his notice of winding up sent to the respondent company. The only substantial thing he says in the notice is that according to the petitioner, the respondent has to pay a sum of ₹ 26,45,064.75/-; but he gives no clue in his notice as to how he has come about that amount. And thereafter, when the respondent replies by saying that he is denying it for want of material particulars, and that according to the respondent, nothing is due; the petitioner rejoins by once again making circumlocutory statements, simply re-affirming his original position without supplying material particulars even now. In Court, he then takes the position that such a denial by the respondent constitutes a bald denial on the basis of one line in a decision of a Single Judge by this Court in the case of Mayar Traders (supra), and invites this Court to conclude that such a bald denial is no denial and that it, therefore, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court; or even in any claim raised against the opposite party in the first instance, as required by a statute. Another way of looking at the same issue is that had the petitioner genuinely believed that the limited disclosure of material facts in its notice of demand were sufficient to enable and oblige the respondent to take all material defences that are available to it in law at that stage, then it would not have considered it necessary to set down additional facts, including particulars of all invoices etc., upon which the claim was based in its winding up petition filed before this Court, none of which were mentioned in the petitioner s notice of winding up. 21. Further, as regards the position of counsel that the respondent s denial to the petitioner s notice of winding up is a mere bald denial, and therefore, either it should be taken as an admission; or, in any case, any specific defence raised later on in response to the winding up petition filed thereafter, should be considered as an, afterthought , and a, sham defence , because he had failed to raise it in his reply to the notice, is entirely untenable for the following reasons; - Firstly, because even if a noti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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