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TMI Blog2016 (3) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... 971 (10) TMI 49 - SUPREME COURT OF INDIA] relied upon by the learned Company Court, the Supreme Court held that if a company raised a defence in good faith or a defence which was likely to succeed or prima facie likely to succeed at the trial, in that event the winding-up application would fail. Industries Corporation Ltd. [2004 (8) TMI 684 - CALCUTTA HIGH COURT] where a Division Bench of this Court presided over by Ajoy Nath Ray, A.C.J., opined that in a winding-up application, the Court had to come to the conclusion that the claim of the petitioning creditor was indisputable. This determination had to be final and not prima facie, at both stages of winding up, the admission stage and the trial stage. At the admission stage it was final and conclusive as between the petitioning creditor and the company, but at the final stage it was conclusive between the petitioning creditor, the company, the creditors and all other persons who joined the winding-up. In SRC Steel Pvt. Ltd. [2004 (8) TMI 684 - CALCUTTA HIGH COURT] held that the standard of proof required by the petitioning creditor to prove his case in the winding-up application was the same standard that was required to pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oning creditor against the respondent companies, which are on account of goods sold and delivered by the petitioning creditor to the respondent companies, are as follows : (i) Concast Global Ltd. ₹ 10,20,35,779.20 (ii) Concast Exim Ltd. ₹ 10,41,13,301.99 (iii) Concast Ispat Ltd. ₹ 10,42,72,042.73 (iv) Dankuni Steel Ltd. ₹ 10,78,67,248.36 It is not disputed that the goods have been supplied by the petitioning creditor to the respondent companies. It is the case of the respondent companies that the respondent companies are part of a group of eight companies, which may, for the sake of convenience, be referred to as the Concast group of companies. The Concast group of companies include Concast Bengal Industries Limited, hereinafter referred to as Concast Bengal . Mr. Sanjay Sureka, controls the Concast group of companies including the four respondent companies, as well as Concast Bengal. For the purpose of adjudication of this appeal we may proceed on the basis that Concast Bengal and the four responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To strengthen her argument, Ms. Chakraborty referred to invoices to show that there were due dates printed in the invoices. Ms. Chakraborty argued that it was not the contention of the respondent companies that the due dates had been mentioned erroneously. In any case, there are no materials to show that the due dates had been objected to by the respondent companies. Ms. Chakraborty also argued that the adjustment of amounts alleged to be outstanding and payable by the petitioning creditor to Concast Bengal on account of supplies allegedly made by Concast Bengal to the appellant petitioning creditor was not reflected in the annual reports and balance sheets of Concast Bengal. The adjustments were not recorded in the balance sheets of the petitioning creditor. Ms. Chakraborty emphatically argued that the balance sheet of Concast Bengal has been annexed to the affidavit in opposition filed by one of the respondent companies. The column relating to Related Party Disclosures does not say anything about the purported adjustment of the amounts due and payable by the respondent companies against the amounts allegedly due and payable by the petitioning creditor to Concast Bengal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no lien has been claimed in respect of goods by way of security. Moreover, the respondent companies claim that there is an agreement for adjustment. The veracity of the claim has to be adjudged upon evidence, as observed earlier. In M/s. H. M. Kamaludin Ansari and Co. vs. Union of India Ors., reported in (1983) 4 SCC 417, cited by Ms. Chakraborty, the Hon ble Supreme Court interpreted clause 18 of the concerned contract. The judgment was rendered in the particular facts of the case. A judgment is a precedent for the issue of law that is decided. There is no issue of law decided in the aforesaid judgment which supports the contention of the petitioning creditor that the dues of the petitioning creditor to Bengal Concast could not have been adjusted against the claims relating to the supplies in question. The judgment in Union of India vs. Raman Iron Foundry reported in (1974)2 SCC 231 which interprets the contract concerned, is also distinguishable on facts and has no application in this case for the same reason. Ms. Chakraborty argued that the respondent companies cannot seek to set off supplies made by Concast Bengal to the petitioning creditor against supplies made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upport of her contention she cited the following judgements: I) New Horizon Limited and Another Vs. Union of India and others reported in (1995) 1 SCC 478; ii) 2008 (3) CHN 384 Kamal Kumar Mitra, deceased and Taxation Services Syndicate Ltd. iii) 1999 1 CLJ 105 Food Corporation of India Vs. Williamson Magor Co. Ltd. iv) 2011 1 CHN (Cal) 762 Niranjan Lal Todi Anr Vs. Nandlal Todi Ors; v) 157 CC 413 Dallah Albaraka (Ireland) Ltd. Vs. Pentasoft Technologies Ltd. There can be no dispute with the proposition laid down in the judgements cited by Ms. Chakraborty. It is well settled that the Court can in appropriate cases lift the corporate veil to find out the true nature of the transactions. However, ordinarily in proceedings for winding up of a company or for that matter in civil proceedings for recovery of a claim a group of companies does not automatically become liable nor can a group of companies automatically claim entitlement to payment of dues payable to a different group of companies. The question is whether there was any arrangement by which a right to adjustment can be claimed. This is a factual issue which may have to be decided on the basis of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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