9911796707
TMI Blog2020 (2) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... vil construction, fabrication and erection works. In view of the expertise of the petitioner firm in executing civil construction, fabrication and erection works, the respondent company had entered into two agreements with the petitioner firm viz, (i) agreement dated 01/01/2009 for execution of certain civil construction work in connection with the proposed 1.4 MTPA Cement Grinding Unit at Lanka and (ii) agreement dated 25/11/2009 for execution of the work of fabrication and erection of the proposed 1.4 MPTA Cement Grinding Unit. Pursuant to the signing of the aforementioned agreements, the respondent company had issued work order dated 13.10.2009 for civil works at Lanka valued at Rs. 31,03,69,697/-, work order dated 15.03.2010 for execution of mechanical works at Lanka valued at Rs. 9,46,51,187.50 p and work order dated 13.10.2009 for executing civil works at Umrangsho valued at Rs. 22,29,15,340/-. In terms of the aforesaid work orders issued by the respondent company under the aforementioned two agreements, the petitioner firm had undertaken civil works of the proposed 2500 TTP Clinkerisation Unit at Umrangsho. b) Upon completion of the work, the respondent company, being sati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, as a result of which, the petitioner had served a statutory notice under Section 434 of the Companies Act, 1956 dated 26/08/2015 upon the respondent, demanding payment of the outstanding dues. When the aforesaid notice was not responded to by the respondent company despite receipt of the same, the petitioner was compelled to approach this Court by filing the present petition for winding up the respondent company. 4. The claim of the petitioner, as projected in the pleadings, is for payment of an amount of Rs. 1,77,03,540.68 being the principal amount due and payable under the contract agreements. Besides that, a further amount of Rs. 1,69,19,853.54, being the interest component @ 24% per annum, has also been claimed by the petitioner firm with effect from 01/04/2012 till 31/07/2015. 5. The prayer made in this petition has been opposed by the respondent company, inter-alia contending that the management of the respondent company was taken over by the Dalmia Cement (Bharat) Limited (for short 'DCBL') pursuant to the signing of share holders agreement dated 16/01/2012. Since the works allegedly executed by the petitioner firm was during the period when BW group was in control of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t company. Therefore, submits Mr. Saraf, it is established on the face of the record that the respondent company is unable to pay its admitted debts. 9. Mr. Gogoi, learned counsel for the respondent, on the other hand, has argued that the petitioner firm is controlled by a relative of the erstwhile management group, viz. BW family and, therefore, the reflection made in the petition is nothing but projection of some sham transaction only to fasten undue liability upon his client (DCBL). By referring to clause 14.15.1 of the agreement dated 16/01/2012, Mr. Gogoi submits that the DCBL group would not have any liability to pay the amount of Rs. 688.19 lacs as reflected in Annexure-6 since the aforesaid amount was to be indemnified by the BW group. Mr. Gogoi submits that after the change of management of the company, the company petition has become untenable in the eye of law and therefore, the remedy for the petitioner lies in approaching the Civil Court. 10. By referring to the e-mails brought on record by the petitioner, Mr. Gogoi submits that the letters were procured by the petitioner by employing dubious means, inasmuch as the employee who had written the e-mails had resigned fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the company to pay a bona fide disputed debt.". 12. In the present case, as noted above, the claim of the petitioner is for payment of outstanding dues arising out of execution of contractual work based on work order issued by the respondent company. As mentioned above, the management of the respondent company had changed hands from the BW group to DCBL group upon execution of share holders agreement dated 16/01/2012. Therefore, it is the admitted position of the fact that three contracts executed between the respondent and the petitioner and the work orders issued to it for execution of the aforementioned works were during the period when the "BW group" was in control of the respondent company. However, what would be significant to note herein is that the respondent had not denied or disputed the fact that the petitioner firm has, in fact, executed the work of civil construction, fabrication and erection in the cement plant at Lanka and Umrangsho. Not only that, the amended share holders agreement executed between the "DCBL" and "BW group" on 13/11/2012 also contains annexure-6 wherein it has been it has been categorically mentioned that an amount of Rs. 386 lacs is payable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability of the respondent company and not the inter se liability of the two groups over their right on the shares of the respondent company. The respondent company is a legal entity and an existing company within the meaning of Companies Act, 1956. The claim in this petition is against the respondent company and not the DCBL group or the BW group, as the case could be. Therefore, I am of the considered opinion that the respondent company cannot deny its liability to pay the dues of the petitioner firm by seeking refuge under clause 14.15.1 of the agreement dated 16/01/2012. 16. In so far as the validity of the claim made by the petitioner is concerned, I find from the records that by the communication dated 27/05/2012, the Manager (Finance) of the petitioner company has informed the petitioner as follows :- "Dear Sir With reference to the work orders as above we confirm that as per our books of accounts as on 31.3.2012 there is a credit balance of Rs. 3,16,04,550.68 (Rupees three crores sixteen lacs four thousand five hundred and fifty and paise sixty eight only). Yours faithfully For Calcom Cements India limited" 17. The letter dated 27/05/2012 refers to the three work ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nuously argued that the financial health of the DCBL company is sound and it has turn over exceeding Rs. 1000 crores per annum. Therefore, even if the amount is found to be due and payable to the writ petitioner, it is not a fit case for ordering winding up of the company. The aforesaid argument of Mr. Gogoi cannot be accepted by this Court simply on account of the fact that the question involved herein pertains to the financial health of the respondent company and not the DCBL group of companies in general. The series of communications annexed to the company petition unequivocally goes to show that the company was facing financial crunch not only when it was under the control of the previous management but even after the control of the company was taken over by the DCBL. 21. Coming to the plea of fraud taken by the respondent's counsel, it is to be noted herein that the plea is based on the premise that a letter dated 27/05/2012 has been procured by the petitioner and that the executive of the company, who had issued the said letter, had subsequently resigned to join a company under the control of the BW group. I am afraid, mere assertion of this nature, without substantiating th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
