TMI Blog2014 (4) TMI 944X X X X Extracts X X X X X X X X Extracts X X X X ..... admitting the winding up petition is also kept in abeyance for a period of four weeks. In the event, the respondent is able to discharge its debts to the petitioner or arrive at an amicable settlement for repayment of the same within the period of four weeks, the directions as stated above will not come into effect. In the event the parties are unable to arrive at an amicable settlement for discharge of the dues of the petitioner, the counsel for the petitioner shall inform the Official Liquidator, who shall on receipt of such communication proceed to take the necessary steps in accordance with law and in conformity with the directions as issued herein - Decided conditionally in favour of assessee. - CO. PET. 302/2012 & CA No. 1209/2012 - - - Dated:- 24-4-2014 - Vibhu Bakhru,JJ. For the Petitioner : Mr. Arun Kathpalia, Mr. Rajat Jariwal, Mr. Angad Ms. Anisha Somal For the Respondent : Mr. Raman Kapur, Sr. Adv. with Mr. Rishab Raj Jain JUDGMENT Vibhu Bakhru, J 1. The present petition has been filed by the petitioner company under Sections 433(e) and 434 of the Companies Act, 1956 (hereinafter referred to as the Act ) inter alia praying for winding up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent company. It is submitted by the petitioner that the same clearly indicated that the respondent desired and was agreeable that the said cheques be presented on 24.04.2011 instead of 18.04.2011. 5. It is pointed out by the petitioner that a Positive Receivable and Confirmation Request dated 15.04.2011 was also signed on behalf of the respondent company whereby it was acknowledged by the respondent that a sum of Rs.8,45,89,296/- was due and payable by the respondent company to the petitioner, as on 31.03.2011. Thereafter, the respondent issued another cheque for a sum of Rs.1,00,00,000/- being Cheque No.104692 dated 31.03.2011 drawn on Axis Bank Ltd. It is stated that the petitioner sent a letter dated 05.05.2011 to the respondent confirming the receipt of the said cheque and the said letter was also acknowledged by the respondent. 6. It is submitted by the petitioner that the cheques issued by the respondent were dishonoured and the petitioner initiated proceedings under Section 138 of the Negotiable Instrument Act, 1881. It is submitted that the statutory notices for initiating such proceedings were sent by the petitioner to the respondent on 21.07.2011 and 05.09.2011. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in making payment of the amount that may be found due and payable to the petitioner. The learned counsel for the respondent has also drawn my attention to clause 8 of the Agreement between parties, which specifically provides that in case the contract has been agreed in US Dollars, the dollar value is freezed and payment would be received with premium upto the date of payment . It is admitted by the respondent that the payment for the goods would be payable at the prevailing foreign exchange rate prevailing at the time of making payment. It is also stated that as the amounts were payable after four months. 10. It is also contended that in the year 2010 2011 (during the festival of Diwali), the petitioner released the stocks very late and as the petitioner was charging the currency premium for lifting the stocks, therefore, the respondent had to purchase the material from local market. It is contended that, due to the default and breach on the part of the petitioner, the respondent has suffered losses, which the respondent was entitled to adjust/recover from the petitioner. The counsel for the respondent has also relied upon letters dated 21.11.2011, 08.12.2011 and 12.12.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peculative defence raised only for the purpose of avoiding payments to a petitioner cannot be construed as a substantial or a bonafide defence to a petition under Section 433(e) of the Companies Act, 1956. The Supreme Court in the case of IBA Health (India) Pvt. Ltd. v. Info Drive Systems SDN. BHD: (2010) 10 SCC 553 has explained the above principle as under:- 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 disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecome wiser and would have raised the disputes, in the event the same existed. However, the correspondence between the parties clearly indicates that there were no disputes between the parties at that stage. 18. Essentially, the respondent has raised two disputes: (a) the petitioner has overcharged the respondent on account of currency premium and (b) that the petitioner is liable to compensate the respondent for the alleged losses suffered by the respondent on account of delay in supply of goods for the Diwali season of 2010 and 2011. It is settled law that the stage at which the disputes are raised is a material factor while determining the question whether the disputes are bonafide or not. In the present case, the disputes that are sought to be raised are clearly at a belated stage. The respondent claims to have conducted business with the petitioner for a value of about Rs.55 crores in the past. The issue of charging premium had apparently never been raised by the respondent prior to the issuance of notice under NI Act. The same is also indicative of the fact that the disputes sought to be raised by the respondent are an afterthought. 19. It is an admitted case that as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is liable to be wound up. 23. The judgments referred to by the respondent also do not assist the respondent in any way. In the case of RPG Cables Ltd. (supra), this court has observed that there had been default of both the parties i.e. petitioner as well as respondent (therein) in complying with the time schedule stipulated in the Agreement and whose default had led to the delay in the execution of the Agreement was a debatable issue, which could not be decided in a summary manner without oral evidence and therefore, in these circumstances, this court refused to admit the said petition. In the case of Tata Capital Financial Services Ltd. (supra), the winding up petition was already admitted and this court was only considering the question as to whether the petition should be advertised and the Official Liquidator should be appointed as a Provisional Liquidator. 24. In view of the above, the winding up petition is admitted and the petitioner is directed to publish the citations in the Statesman (English) and Veer Arjun (Hindi) for a hearing to be held on 12.08.2014. The Official Liquidator is also appointed as a Provisional Liquidator to take charge of the assets and th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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