TMI Blog2013 (9) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... . Easwar,JJ. For the Petitioner : Mr. Sunil Satyarthi with Mr. Raman Gandhi and Mr. Rahul Gola, Advocates. For the Respondents : Mr. Sumit Bansal with Ms. Sumi Anand, Advocates. JUDGMENT R. V. Easwar,J. This is a petition filed by M/s Shubham Constructions hereinafter referred to as the petitioner , under section 433(e) read with section 434 of the Companies Act, 1956 seeking winding up of M/s MVD Autocomponents Pvt. Ltd., hereinafter referred to as the respondent . 2. The petitioner is a proprietary firm engaged in the business of construction. The respondent is a company incorporated under the Companies Act. It manufactures and exports auto electrical switches, sensors, plugs etc. for passenger cars, commercial vehicles, earthmoving machinery etc. 3. The respondent approached the petitioner to construct its factory premises. An agreement was entered into between the petitioner and the respondent on 22.11.2007 setting out the terms and conditions. Clause 9 of the agreement provided that the respondent shall pay a sum of Rs. 1.20 crores to the petitioner for the construction and that the bills as per approved quotation presented by the petitioner shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... your notice but the copy of the same not annexed with the same within 3 working days from the receipt of this intimation at the address mentioned herein above of my client. Furthermore, my client reserves their rights to reply upon your notice dated 27/4/2012 after receiving statement of accounts and other auxiliary documents as mentioned herein above from your client. 5. A reminder was also sent by the respondent to the petitioner stating that the petitioner had not sent the statement of accounts as demanded by the respondent and calling upon the petitioner to send the statement of accounts within 3 working days from the receipt of the letter. It was stated that the respondent would reply to the petitioner s notice in detail after getting the statement of accounts. 6. Since the respondent did not clear the dues to the petitioner, the petitioner filed the present winding up petition on 12.7.2012. On 16.7.2012 it sought permission of this Court to file an additional affidavit along with the statement of account. Permission was granted and the additional affidavit was filed along with the statement of account. 7. The contention of the learned counsel for the petitioner is tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the learned counsel for the respondent contended that the defence set up by the respondent was substantive and did not amount to moonshine. He pointed out that clause 3 of both the agreements defining the scope of the work was identical and it is inconceivable that there can be two agreements for the same work. He submitted that the petitioner was not even clear as to how much is due to it by the respondent. It is pointed out that as per the statutory notice, the petitioner demanded a sum of Rs. 96,33,752/- with simple interest at 24% per annum from June, 2010. However, in the petitioner s letter dated 6.7.2011 the amount demanded was Rs. 38,10,760/-; in the earlier e-mail dated 17.1.2011 the amount demanded was approx 35 lacs . It was pointed out that when the petitioner does not know as to how much is due and payable to it by the respondent, there is no ground for filing the winding up petition. It was submitted that there were disputes with reference to all aspects of the contract. Moreover, the petitioner itself has admitted that there is a provision for arbitration in clause 12 of the agreements dated 22.11.2007 and 4.6.2008 under which the architect S K Sami was the sole ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpany Court. After noticing these judgments, the Supreme Court in IBA Health (India) Private Limited Vs. Info-Drive Systems SDN. BHD. (2010) 10 SCC 553 held as under : (Para 20) The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding up procedure. The Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upkeep after it was handed over to the respondent? J. Were these defects removed and if so, when? Was the petitioner liable to remove the defects, and if so, upto what period? 12. Each of the above issues is a substantive issue touching upon the liability of the parties in relation to the construction. The defence put up by the respondent is not mere moonshine or of such nature as to be thrown out at the threshold itself as being without merit. It appears to me that these are issues which have to be examined in depth and that the Company Court cannot do so in proceedings under section 433(e) of the Companies Act. This is a hotly contested debt. 13. The learned counsel for the petitioner relied on three judgments of which two are of this Court. In J. K. Corporation Limited Vs. Digipulse India (P) Ltd. (2002) 6 Company LJ 246, which is a judgment of Vikramajit Sen, J (as he then was), it was observed that the respondent was not entitled to any reduction in the price payable to the petitioner as he rejected the goods supplied by the petitioner after a long period of one year. This is a factual finding and per se does not support the stand of the petitioner before me. In the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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