TMI Blog2009 (4) TMI 991X X X X Extracts X X X X X X X X Extracts X X X X ..... #8377; 5.00 Lacs). 8. Release of Retention Money-50% to be released after six months after virtual completion and balance 50% after expiry of 12 months of defect liability period but it can be replaced by Bank Guarantee. In terms of the contract, the petitioner commenced work and raised several bills from time-to-time with regard to the work undertaken. It is pointed out that so far as the work at the Golf Vista was concerned, the same was satisfactorily completed on 31st May, 2005 while the work at the Windsor Greens was duly completed on 29th September, 2005. In terms of Clauses 7 and 8 noted above, the respondent was entitled to retain 10% of the bill amount subject to a maximum of ₹ 5.00 lakh. So far as the defect liability period is concerned, as per Clause 7 of the agreement, in respect of the work at Golf Vista, the period got over on 31st May, 2006 while with regard to the Windsor Greens project, the defect liability period got over on 29th September, 2006, ( 3. ) The petitioner has claimed that a total amount of ₹ 13,63,435/- had been retained by the respondent towards the retention amount in both the contracts. The submission is that upon expiry of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been raised that the e petitioner completed the work in respect of Golf Vista on 31st May, 2005 and the defect liability period of twelve months in respect of this contract would have come to an end on or around 31st May, 2006. Similarly, so far as the Windsor Greens contract was concerned, it was completed on 29th September, 2005 and in terms of Clause 9 of the contract, the defect liability period came to an end on 30th September, 2006. Not a single deficiency or complaint within a period up f to end of May, 2006 or September, 2006 has been pointed out to this Court. No letters in this behalf have also been placed on record. ( 6. ) Before this Court, it is an admitted position that after the expiry of the defect liability period, out of the aforenoticed amount, the respondent made part payments of ₹ 1,50,000/- on 20th March, 2007; ₹ 73,109/- on 18th May, 2007 and ₹ 1,00,000/- on 2nd July, 2007. It is also an admitted fact that no g dispute of any kind with regard to the work which had been undertaken by the petitioner and discharge of its liability under the contracts, was ever raised by the respondent. In order to buttress its case, the respondents have p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y due amount to the petitioner. The respondent was clearly notified that even though the petitioner had no liability to do so under the contract, it was willing to rectify deficiency, if any, in the interest of the project and further business relations and had requested the respondents to provide details of the defects. It has been reiterated that it is only after the expiry of the same when the petitioner started asking for its balance security amount that the respondents started making these kinds of assertions. These communications from the respondents do not further its case at all. So far as the objection that the petitioner has filed a suit disentitling it to maintain the present petition is concerned, it is well settled that the right to bring a winding up action is statutorily conferred under Section 433 of the Companies Act, 1956. However, no person has a statutory right to winding up of a company incorporated under the Companies Act, 1956. Action to recover amounts and to winding up of the company are two wholly distinct and independent remedies. It is not necessary that every petition under Section 433 of the Companies Act, 1956 ends up in an order of winding up. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner without any grievance or complaint. ( 11. ) So far as the defence of deficiency in the work of the petitioner is concerned, the case set up by the respondent does not inspire any confidence. The respondent admits receipt of the statutory notice. It raised no dispute to the contents thereof. No reply was admittedly sent to the notice. The respondent also failed to make payment of the amounts claimed by the petitioner resulting in the filing of the present petition. The respondent company has made bald and vague allegations in the counter affidavit which are unsupported by any material which would enable this Court to hold that the amount was not due or payable to the petitioner. On taking a comprehsensive view of the entire facts, it has to be held that the dispute sought to be raised in answer to the present petition is totally bogus and sham and has been raised only in order to create a semblance of a defence to the present winding up proceedings. ( 12. ) So far as the debt and extent of liability is concerned, I find that there is no dispute to the quantification of the amount. The respondent has admitted part payment out of the amount which was retain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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