9911796707
TMI Blog2011 (9) TMI 739X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-company") was incorporated on July 21, 1978, with Corporate Identity No. L26942AP1978PLC002315. It is engaged in production of cement and allied products. The registered office of the respondent-company is situated at 6-3-652/C/A, Flat No. 5A, "Kautilya", Amrutha Estates, Besides Medinova, Somajiguda, Hyderabad-500 082, Andhra Pradesh. (b) The respondent-company requested the petitioner for supply of one No. 25/30 MVA, 132/6.9 KVA transformer for its operations and future expansions to its plant located at Ramapuram, Nalgonda District, Andhra Pradesh and issued a Purchase Order No. 10800074 dated May 26, 2008, worth Rs. 1,80,00,000 plus applicable taxes etc. M/s. Entech Consultant of the respondent-company conducted routine test on the transformer and thereupon, the respondent-company's project consultant by e-mail dated December 18, 2008, requested the petitioner to dispatch the same immediately. The respondent-company addressed a letter dated December 19, 2008, to the petitioner enclosing road permits to enable the petitioner to dispatch the transformer and its accessories. Pursuant to the said letter, the petitioner dispatched the transformer and its accessori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ormer by the petitioner, pursuant to the purchase order dated May 26, 2008, is not disputed. The petitioner abruptly stopped the installation and erection works of the transformer and thereby caused much delay in the expansion programme, which caused great loss and irreparable damage to the respondent-company. The petitioner stopped all the works since March, 2009. The petitioner has not fully erected the transformer and not commissioned the transformer for service and therefore, the petitioner is not entitled for the amounts as claimed in the legal notice. In the meeting held on July 21, 2010, the petitioner agreed and accepted to take back the transformer and the petitioner having failed to take back the transformer got issued legal notice dated September 24, 2010, with all false allegations. Since the petitioner approached this court suppressing material facts, the petition is liable to be dismissed. It is also stated in the counter affidavit that as the petitioner issued a legal notice dated February 26, 2011, invoking arbitration clause in the purchase order, the present petition is premature and has become infructuous. 4. The petitioner filed a reply affidavit. It is stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the respondent failed to pay the undisputed admitted amount as against the manufacture and supply of the transformer, which was received by them. The respondent is put to strict proof of the same that the purchase order (supply of the transformer) and work order (detailed design, engineering, fabrication, supply, erection and commissioning of 132 KV switch yard along with equipments) are one and same." 5. Heard learned counsel appearing for the petitioner and learned counsel appearing for the respondent. 6. Learned counsel appearing for the petitioner submits that the respondent-company received the transformer supplied by the petitioner and admitted its liability to pay the outstanding dues towards the value of the transformer under e-mail dated September 14, 2009. The respondent-company having admitted the outstanding dues cannot be permitted to contend that the amount claimed by the petitioner is a disputed amount. In a way, his contention is that the dispute raised by the respondent-company with regard to its liability is not sustainable and the defence pleaded by the respondent-company in denying its liability is moonshine. Learned counsel took me to the e-message emana ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent-company being a defaulting party cannot be permitted to contend that there is no liability on its part to pay the outstanding amount. 8. In support of his submissions, learned counsel placed reliance on the following decisions : (1) Madhusudan Gordhandas & Co. v. Madhu Woollen Industries (P.) Ltd. [1972] 42 Comp. Cas. 125 (SC) (2) Haryana Telecom Ltd. v. Sterlite Industries (India) Ltd. [1999] 97 Comp. Cas. 683/22 SCL 156 (SC) (3) IBA Health (I) (P.) Ltd. v. Info-Drive Systems Sdn. Bhd. [2010] 159 Comp. Cas. 369/104 SCL 367/8 taxmann.com 1 (SC) (4) Fibrex Inc. v. A. B. K. Publications Ltd. [1999] 97 Comp Cas 947/[2000] 25 SCL 312 (AP). (5) Oswal Minerals v. Mysore Calcides & Chemicals [1999] 98 Comp. Cas. 722/22 SCL 152 (Kar.). (6) Marsons Ltd. v. Mundhra Bright Steel [2002] 39 SCL 919 (Cal.). (7) Prime Century City Developments (P.) Ltd. v. Ansal Buildwell Ltd. [2003] 113 Comp. Cas. 68/42 SCL 256 (Delhi) (8) Ellenbarrie Tea Co. Ltd. v. Vivek Kejriwal [2004] 52 SCL 342 (Cal.). (9) Vaishali Aromatic (India) (P.) Ltd. v. Deogiri Nagri Sahakar Bank Ltd. [2005] 3 Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hin the meaning of section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated and non-payment of the amount of such a bona fide disputed debt cannot be termed as "neglect to pay" so as to incur the liability under section 433(e) read with section 434(1)(a) of the Companies Act, 1956. 11. The Supreme Court in IBA Health (I) (P.) Ltd. (supra) held that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the winding up petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding up procedure. The company court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding up petition as a means of forcing the company to pay a bona fide disputed debt. A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The company court, at the stage of winding up petition is not expected to hold a full trial of the matter. It must decide whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puted amount. Exchange of e-mails between the parties clearly establish that the respondent-company accepted its liability to pay Rs. 1,57,01,080 towards the value of the transformer supplied by the petitioner. A plea has been taken by the respondent-company that the petitioner agreed to take back the transformer in the meeting held on July 21, 2010 and therefore, there is no obligation on the part of the respondent-company to pay the balance amount. The photostat copy of the minutes of the meeting finds place at page No. 9 of the material papers filed along with the counter. It is useful to refer the minutes of the meeting, which read as hereunder : "Minutes of meeting held at Bheema Cements Ltd., Hyderabad Office on July 21, 2010, regarding the outstanding payment against supply of 25/30MVA 132/6.9 KV transformer bearing Sl. No. D-8215 on December 30, 2008, by Areva T and D India Ltd. Attended by : For Areva T and D Ltd. For Bheema Cements Ltd. 1. Mr. Aruni Dasgupta 1. Mr. A. Uma Maheswara Rao 1. M/s. Areva has requested M/s. Bheema Cements Ltd., to clear all outstanding of Rs. 1,57,01,080 (rupees one crore fifty seven lakhs one thousand ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
