TMI Blog2011 (9) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... itration clause is not a ground to dismiss the application seeking an order of winding up of the respondent-company. - Accordingly, the company petition is admitted - CO. PETITION NO. 241 OF 2010 - - - Dated:- 9-9-2011 - B. SESHASAYANA REDDY, J. C.R. Sridharan for the Petitioner. Vedula Srinivas for the Respondent. JUDGMENT 1. This company petition has been taken out by Areva T and D India Ltd., under sections 433(e), (f) and 439(c) of the Companies Act, 1956, read with rule 95 of the Companies (Court) Rules, 1959, for winding up of Bheema Cements Ltd., on the ground that it failed to discharge its liability to a tune of Rs. 1,57,01,080 due and payable to the petitioner. 2. The case of the petitioner, in brief is : ( a ) Areva T and D Ltd. ("the petitioner") is a company incorporated under the provisions of the Companies Act, 1956, having its registered office at E-48/7, Okhla Industrial Area, Phase-II, New Delhi-110 020, Sheweth. It is engaged in the business of manufacturing power transmission and distribution equipments and solutions. Bheema Cements Ltd. (formerly known as Ckoramaandel Cements Ltd.) ("the respondent-company") was incorporated on July ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es and promised to clear the same by October 15, 2009. The respondent-company failed to make further payments, despite their assurance under e-mail dated September 14, 2009. Therefore, the petitioner issued a statutory notice dated September 24, 2010, under the provisions of the Companies Act, 1956, calling upon the respondent-company to pay the admitted and undisputed outstanding dues of Rs. 1,57,01,080 along with interest at 18 per cent. per annum from the date of default till realisation. The respondent-company received the notice and issued reply dated October 25, 2010. According to the petitioner, the pleas taken by the respondent in their reply notice are beyond the scope of the terms of the purchase order dated May 26, 2008. Since the respondent failed and neglected to pay the outstanding amount of Rs. 1,57,01,080 the respondent-company has become commercially insolvent warranting an order of winding up. Hence, this petition with a prayer stated supra . 3. Notice to the respondent came to be ordered on October 29, 2010. The respondent entered appearance and filed counter. The counter affidavit, in brief, is : Supply of transformer by the petitioner, pursuant to the purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for the necessary documentations to be made by them. The copy of the above said e-mail is filed herewith as annexure P13. (18) The respondent has neither cleared the undisputed outstanding nor furnished the particulars as sought for in the above said e-mail. It is submitted that the attitude of the respondent is only to defraud the petitioner. The petitioner has reliably learnt that the respondent is not in a position to discharge its liability. The other contents of the paragraph are denied and the respondent is put to strict proof of the same. (19) As regard paragraph 6 of the counter affidavit, it is true that the petitioner got issued a legal notice dated February 26, 2011, invoking clause 14 of the work order dated May 28, 2008 (detailed design, engineering, fabrication, supply, erection and commissioning of 132 KV switch yard along with equipments) which is a different and independent contract and it is play on the part of the respondent to prejudice the mind of this hon'ble court by mixing up the same with that of the purchase order issued for manufacture and supply of the transformer. The present company petition has been filed since the respondent failed to pay the u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat from the information we have from the banks the likely date of disbursement of loan will be in the second week of October, 2009. We are hopeful that this time there may not be delay beyond the date. Based on this information we will clear your dues from October 15, to the possible extent. We now request you to mail/courier our statement of account in your books for processing the payment. We request you to kindly bear with us till such time." 7. Learned counsel would further contend that though the respondent-company has taken a plea that it made some part payments other than Rs.45,50,000 but it failed to place on record any material to substantiate the same. Therefore, it is to be inferred that the plea taken by the respondent-company with regard to part payments other than Rs. 45,50,000 falls to the ground. Learned counsel by referring the minutes of the meeting dated July 21, 2010, submits that it is the respondent-company which failed to give the particulars of the site address, contact person at the site and the telephone numbers, so as to enable the petitioner to make appropriate arrangements to lift/pick up the transformer and the respondent-company being a defau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatised as a scandalous abuse of the process of the court . . ." 10. The abovementioned decision was later followed by this court in Madhusudan Gordhandas and Co. ( supra ). The principles laid down in the abovementioned judgment have again been reiterated by this court in Mediqup Systems (P.) Ltd. v. Proxima Medical System GmbH [2005] 124 Comp. Cas. 473/59 SCL 255 (SC) wherein the Supreme Court held that the defence raised by the appellant-company was a substantial one and not mere moonshine and had to be finally adjudicated upon on the merits before the appropriate forum. The abovementioned judgments were later followed by the Supreme Court in Vijay Industries v. NATL Technologies Ltd. [2009] 147 Comp. Cas. 490/89 SCL 205 (SC). The principles laid down in the abovementioned cases indicate that if the debt is bona fide disputed, there cannot be "neglect to pay" within the meaning of section 433(1)(a) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e notice dated October 26, 2010, issued by the petitioner invoking the arbitration clause in the work order. 13. It is not in dispute that the petitioner invoked the arbitration clause in the work order and nominated Shri D. V. Ramana Murthy, a District Judge (retd.) as an arbitrator and sought consent of the respondent-company. It is to be noted that there are two indents emanating from the respondent-company. One is purchase order and another is work order. Pursuant to the purchase order, the petitioner supplied the transformer. The respondent-company received the transformer and the transformer is presently lying in the premises of the respondent-company. Indeed the respondent-company in its e-mail message dated September 14, 2009, accepted the receipt of the transformer and also its liability to pay the amount. Though the respondent-company pleaded that it paid some more amount other than Rs. 45,55,000 it has not placed any material on record to substantiate the same. As on this day, against the purchase order worth of Rs. 1,80,00,000 the respondent-company paid only Rs. 45,55,000. Therefore, the amount claimed by the petitioner cannot be said to be a disputed amount. Excha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... message dated August 12, 2010, nor paid the value of the transformer. Therefore, the defence pleaded by the respondent-company has no substance. The amount claimed by the petitioner cannot be said to be a disputed amount. The respondent-company at no point of time prior to responding to the statutory notice, disputed its liability to pay the amount. All through the respondent-company has been expressing satisfaction with the facility allowed to it and requested extension of time for payment of the amount. Therefore, I am of the view that denial of the liability by the respondent-company is not bona fide . The failure of the respondent-company to pay the admitted amount constitutes a prima facie ground for admission of the winding up petition. A feeble contention has been advanced by learned counsel appearing for the respondent-company that the petitioner invoked arbitration clause and since the disputes between the parties are required to be resolved by an arbitrator, the company petition filed by the petitioner seeking an order of winding up is not maintainable. 15. It is well-settled that the power to order winding up of a company is contained under the Companies Act and i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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