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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 ..... d an amount of Rs. 1,60,73,297/- (Rupees one crore sixty lacs seventy three thousand two hundred and ninety seven only); and as such an amount of Rs. 26,17,363.75/- alongwith Rs. 27,701/- as bank charges totalling Rs. 26,45,064.75/- (Rupees twenty six lacs forty five thousand sixty four and seventy five paise only) with interest @16% per annum is due from the respondent. 4. The petitioner served a notice of winding up dated 01.05.2013 on the respondent calling upon it to make the payment of the aforesaid amount. The petitioner contends that since the respondent failed to pay the aforesaid amount; and has raised no bonafide defence in its reply to the said notice of winding up; it must be deemed to be unable to pay its debts in terms of Section 433(e) read with 434 of the Companies Act, 1956. 5. The petitioner has placed reliance on a ledger account, allegedly maintained by it in the regular course of business, showing a total debit of Rs. 1,86,90,660.75 for the relevant period, (i.e., from 11.04.2012 to 08.06.2012) in respect of sales made by it. The petitioner further relies on the invoices raised by it on the respondent mentioning the relevant dates and the amounts due. In addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , he has relied on a decision of this Court in Mayar Traders Ltd. v. Akhil Services Ltd., (1993) 52 DLT 577. In other words, according to counsel for the petitioner, even a bald, one-line demand saying that Rs. 26,45,065.75/- is due, is sufficient; and if the same meets with an equally bald denial; and remains unpaid within the time envisaged under the notice of winding up, the respondent is liable to be wound up. 9. Counsel goes on further to say that the said amount demanded by the petitioner in its winding up notice as aforesaid, does not completely account for the interest element payable on account of delayed payment. In other words, the payment being claimed as due by the petitioner in this petition has not been debited in the account of the respondent company maintained by the petitioner itself. This is obvious from paragraph 3 of the legal notice, which also indicates that notwithstanding the fact that the petitioner has claimed interest at the rate of 16% per annum in its notice; no interest has been debited in its books of accounts. It follows, therefore, that even according to petitioner's own statement of account, that amount is not outstanding. When counsel is confron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esumption of an admitted, undischarged debt due from the respondent to the petitioner, by itself sufficient to compel the Company Court to proceed to wind up the company. The decision of Mayar Traders (supra) is predicated on the issuance of a letter whereby the dispute between parties was duly settled; and the respondent had refused to then pay even that settled amount, thus prompting the petitioner to move for winding up. It was in these circumstances, that it was concluded by the court that it does not lie with the respondent to now raise any dispute with regard to the settled amount; and any attempt to do so, could not, under the circumstances be said to constitute a bonafide defence. 13. However, notwithstanding the above circumstances in which that judgment of Mayar Traders (supra) came to delivered, counsel places reliance on paragraph 6. He seeks to pick one line from this entire paragraph which states as follows; "....mere denial of liability is no defence what to talk of bonafide defence...." He is invoking this to support his proposition that, merely because the respondent has not given any particulars about the payments made to the petitioner during the course of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent under Section 434 of the Companies Act, 1956, and its response to the same. In any case, the requirement for a specific denial has to be in the light of a specific assertion of the fact relied upon, along with all material particulars. It cannot be that on the one hand, it is available to a claimant to raise a bald demand without giving any material particulars; and thereafter, to expect the respondent to keep assuming and imagining all relevant circumstances out of which the demand may have arisen, and based on such assumptions, to start giving a specific reply to each and every such assumption. 15. A perusal of the reply to the legal notice shows clearly that the respondent is denying the claim raised for want of knowledge of complete and material particulars, and reiterating the position of the respondent that all payments as due have already been made to the petitioner, and that nothing is due. The respondent has further pointed out that no amount was ever admitted by the respondent as currently due and payable to the petitioner, while inviting the petitioner to reconcile accounts. 16. Counsel for the petitioner then relies on a rejoinder sent by his client to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts a handle to exploit respondents by practicing a type of deceit by initially issuing a bald notice of demand, and thereafter, when the same is denied, to file a detailed petition setting down material particulars. And once this is done, to seek to block a material defence against the same on the ground that the defence now raised was not reflected in the reply to the notice of demand. To my mind, specially in the light of this stand, which is so emphatically taken at the Bar, this petition is nothing but an abuse of the process of court. 18. Even after it has become obvious, counsel still presses his petition and states that actually the respondent had the invoices in question and therefore it had all the material particulars at their command; and it was therefore for the respondent to have sort of deduced that the demand raised in those invoices was, in fact, relatable to this very notice, and from there, the respondent ought to have then worked out its defence on material particulars while anticipating the material particulars that may be placed by the petitioner in support of its petition for winding up, that was yet to be filed; and since the respondent has chosen not to tak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deceit. Even if one was to permit the petitioner to equate the requirements of a notice of demand and its reply, with rules applicable to pleadings in Court, then also, a specific denial has to come in the face of a specific pleading where all material particulars are set down. It cannot be that if a plaint is filed stating only one sentence, 'the defendant owes the plaintiff Rs. X, and the decree be passed for Rs. X'; no documents are filed, no list of witnesses is filed; nothing is done; only court fee is paid; is it not open to the defendant in the written statement to say, 'nothing is due', and that, 'the plaintiff is put to strict proof for want of particulars'. What is the nature of the specific denial the defendant is supposed to give in such a situation? It cannot be that the defendant is expected to thereafter go into the realm of all possible basis that the plaintiff may have for his claims, and to raise defences with regard to each of them keeping in mind all the knowledge that the defendant has about his relationship with the plaintiff. This cannot be. All relevant facts; which, as we know, are defined as not only facts in issue but also those facts that go to prove or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articulars, to the level of an irrefutable, proven fact, based on an admission by the other side. Secondly, the case of an afterthought is quite different. To my mind, an afterthought is an explanation, or a defence, that has occurred to someone later on; i.e., after the opportunity to give his explanation had already been given to him; and he chose to offer some other explanation at that time, but not the one he is seeking to put forward now; even though all the relevant facts had already been brought home to him beforehand. This is not the factual situation here. Here the opportunity given in the form of a notice of demand discloses no material particulars at all. It follows therefore that the stand taken by the respondent in its reply to the petition for winding up filed in the Court, which is in response to further material particulars disclosed for the first time by the petitioner in the petition, cannot be said to an afterthought. 22. Furthermore, in the case at hand, no attempt has been made to press any facts demonstrating the admission of any amount that could have become due and payable to the petitioner by the respondent. All that the respondent has been saying is that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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