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TMI Blog2012 (8) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... he contract are quoted hereinunder : Sr. No Points agreed from your side 1. It has been discussed and concluded that after a issue of LOI, that Khurana Construction will mobilise their store staff and technical head within seven days and complete mobilsation will take fifteen days. 2. As per clause NO.39 page No.GCC 23 it has been mentioned that to Mobilisation advance is to be given to the extend of 5% of contract amount with 10% per annum interest. Our of which 2.5% of the contract amount shall be with the work order and balance 2.5% of the contract amount shall be replaced only after the advance Mobilisation at site. You had asked for 5% Mobilisation advance without interest against Bank Guarantee of the same amount vide their letter NO.KC/SS/CM36/Tender/03 dated 16th January, 2006 we had agreed to omit the interest @10% per annum and also the recovery will be made in 10 equal installments of Rs.5 lakhs from 1st R.A. Bill to 10th R.A. Bill. 3. According to the Tender Clause No.4 page GCC 11 it has been mentioned that there will be cash retention of 5% from each R.A. Bill and Bank Guarantee of 5% of contract value required to submit till validity of def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,312 as tax deducted at source and deposited the deducted amount with the taxing authorities. It appears from the 'certificate of deduction at source' issued by the company that the petitioner was given credit for an amount of Rs. 37,45,821.00. Learned Counsel for the petitioner further submitted that although tax was deducted and the company agreed to give credit for the aforementioned amount in favour of the petitioner, they have not paid the said amount of Rs. 37,45,821.00. He also submitted that a statutory notice dated 15th November, 2009 was issued by the petitioner which was duly received by the company but the company did not give any reply to the same since they did not have any answer to it. Learned Counsel further submitted that it would appear from the general terms and conditions of the tender that the petitioner's defect liability period is 12 months from the date of virtual completion. The Project Management Consultants have issued completion certificate dated 7th December, 2007 after completion of the entire project. The defect liability period of 12 months expired. According to him, this is the final certificate after completion and they have filed this petition fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract. It was submitted that the contract between the parties does not envisage that any service tax was payable by the company even though the petitioner had proceeded on the contrary while arriving at its purported claim in the petition. It was also submitted that the petitioner has failed to raise final bill upon the company which was brought to the petitioner by its letters dated June 28, 2010 and July 13, 2010 although after the service of winding up notice. It was also submitted that the claim in the arbitration at the instance of the petitioner is bad and improper and also cannot be dealt with in isolation. It was further submitted that the company is a profit making company and winding up proceeding against the company is prejudicial to the interest of the company. Mr. Banerjee also submitted that the statutory notice was not available in the office records of the company at the relevant point of time. As such, it was not replied. Therefore, the allegation of failing and neglecting to secure the sum of money to the reasonable satisfaction of the petitioner does not arise. Mr. Banerjee cited some decisions in support of his contentions that where the debt is a bona fide d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued in writing by the Project Management Consultants at the expiration of the period referred to as the "defect liability period". The relevant portion of the terms and conditions are quoted hereunder : "The Contractor shall be paid by the Employer from time to time by installments under Interim certificates issued by the PMC to the Contractor on account of the works executed in accordance with this contract. The certificates, in the opinion the PMC, works to an approximate value named in the Appendix as "Value of work for Interim certificates" (or less at the reasonable discretion of the PMC) has been executed, subject however, to a retention of the percentage of such value named in the Appendix hereto as "Retention percentage for Interim certificates" until the total amount retained shall reach the sum named in the Appendix as "Total Retention Money" after which the Installments shall be upto the full value o the work subsequently so executed and fixed in the building. The PMC may in his discretion include in the Interim certificate such an amount, as he may consider proper on account of materials delivered upon the site by the Contractor for use in the works. Once the works hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner. It appears to this Court that there is no dispute about the debt and the company has failed and neglected to pay the aforesaid debt. 8. It appears to this Court that there is no dispute about the final certificate issued by the Project Management Consultants and on that basis the company is liable to pay the unpaid debt in favour of the petitioner. The ratio of the judgments cited by Mr. Banerjee about the bona fide of the debt is not in dispute. The principles are all settled and in almost all the decisions it is held that if the debt is bona fide disputed and the defence is a substantial one the Court will not wind up the company. In my view, there is no dispute as regards the claim raised by the petitioner and nothing is to be decided by taking any oral evidence or documentary evidence either. In my view, the amount is to be paid by the company to the petitioning creditor. I prima facie hold that the company is liable to pay the amount of Rs. 52,28,095/- to the petitioner and the petitioner is entitled to interest at the rate of 10 per cent on the said sum on and from 15th November, 2009 till the date of payment. 9. The winding up petition is admitted. Let t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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