1998 (9) TMI 466 - HC - Companies Law

Summary

Issues:
Winding up petition based on dishonored cheque for packing credit facility under Companies Act, 1956.

Analysis:
The petitioners filed a winding-up petition against the company due to a dishonored cheque for Rs. 3,37,65,064, issued under a packing credit facility to meet export orders. The company's affidavit claimed full security was provided through hypothecation of goods and assignment of monies from a foreign party. The petitioners received payments from the foreign party after purchasing export-related bills of exchange. The company argued there was a novation of contract, directing payments to the petitioners' New York account. However, the court found no evidence of novation in the company's reply. The cheque's dishonor led to the petition, and the company's defense lacked mention of contract discharge or novation. The court emphasized the presumption under the Negotiable Instruments Act that the cheque was issued for a debt unless proven otherwise.

The court rejected the company's claim that the cheque was not meant for encashment, citing the lack of such explanation in the relevant communication. The company also argued against lack of notice of dishonor and cited case law on the timeliness of such notices. However, the court found the company's arguments insufficient, especially regarding the absence of a bona fide dispute. The court highlighted the company's debt to the petitioners due to the dishonored cheque, leading to the admission of the petition and its scheduling for further proceedings. The court ordered the petition's advertisement and a deposit by the petitioners. The company sought a stay on the order, subject to conditions related to the Sick Industrial Companies Act, which the court granted with specific timelines and undertakings.