TMI Blog2020 (2) TMI 295X X X X Extracts X X X X X X X X Extracts X X X X ..... could be - the respondent company cannot deny its liability to pay the dues of the petitioner firm by seeking refuge under clause 14.15.1 of the agreement dated 16/01/2012. Having regard to the peculiar facts and circumstances of the case, more particularly the fact that there is an ongoing dispute between the DCBL and the BW Group pertaining to the implementation of share holders agreement, the respondent company is granted 60 (sixty) days time, with effect from the date of this order, to discharge its admitted debt by paying the amount of ₹ 1,77,03,540.68 to the writ petitioner - It is made clear that in the event of failure on the part of the respondent company to make full and final payment of ₹ 1,77,03,540.68 to the writ petitioner within the time frame provided by this Court, necessary order as per law shall be issued for advertising the petition. Let this petition be listed again, after 60(sixty) days, for necessary orders. - Case No. : Co.Pet. 5/2015 - - - Dated:- 11-12-2019 - Mr. Justice Suman Shyam For the Petitioner : Ms. J Gogoi For the Respondent : Mr. R C Das JUDGMENT AND ORDER (CAV) 1. Heard Dr. A. K. Saraf, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20/-. When the work orders were issued to the petitioner, the respondent company was under the management and control of Bawri Group (BW group) but on 16/01/2012, the Dalmia Group of Companies had entered into a Share Purchase Agreement with the BW Group for purchase of majority of the shares in the respondent company. Although the work entrusted to the petitioner was suspended for a brief period while the Share Purchase Agreement was being executed, after the agreement was signed, the construction work had resumed but the Dalmia Group had finished the balance portion of the work by engaging another contractor. Even thereafter, the respondent company had made part payment against the invoices and bills raised by the petitioner but a sum of ₹ 3,16,04,550.68 remained due and payable to the petitioner. On 27/05/2012, the respondent company had issued a letter acknowledging the fact that a sum of ₹ 3,16,04,550.68 was due and payable to the petitioner but stated that the payment would be delayed due to insufficiency of funds. c) On 19/12/2013, the representative of the respondent company had sent an email to the petitioner intimating that the amount could not be paid du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re liability was upon the BW group. 6. In the affidavit-in-opposition filed by the respondent, it has also been mentioned that in reply to the e-mail dated 19/12/2013 issued to the petitioner firm, the respondent has informed that there is some gap in the balance claimed by the petitioner and, therefore, it is a clear case where there was discrepancy in the accounts, as a result of which, there is no acknowledgement of debt in this case. The respondent has also stated that the letter dated 27/05/2012 relied upon by the petitioner firm is doubtful and has been procured by the petitioner by dubious means. On such ground, the respondent has prayed for dismissal of the petition. 7. By referring to the various e-mails exchanged by and between the petitioner and the respondent company from time to time, more particularly, the mail dated 27/05/2012 (Annexure-9), Dr. Saraf has argued that the Manager (Finance) of the respondent company has confirmed, after examination of the Books of Accounts, that there is a credit balance of ₹ 3,16,04,550.68 on the account of the petitioner. Out of the aforesaid amount, the respondent company, while it was under the management of DCBL Gro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a document only to indicate acknowledgement of deduction of tax at source. In support of his aforesaid argument, Mr. Gogoi has placed reliance on a decision of the Bombay High Court rendered in the case of S.P. Brothers, a partnership firm vs. Biren Ramesh Kadakia. 11. The law regarding scope and ambit of the Company Court whhile exercising jurisdiction under Section 433(e)(f), 434 and 439 of the Companies Act has been summed up by the Hon ble Supreme Court of India in the case of I.B.A. Health (I) Pvt. Ltd. Vs. Info Drive System Sdn. Bhd. reported in (2010) 10 SCC 553, wherein it has been held that where there is a substantial dispute as to the liability and obligation, petition for winding up should not be entertained. It was observed that, a dispute to be substantial and genuine, has to be bona fide and not spurious. The observations made in para 17 of the said decision are relevant and, therefore, is reproduced herein below :- 17. 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs. The projection made in Annexure- 6 which forms part of an agreement signed by DCBL group and Bawri Group, leaves no room for doubt that although the petitioner had claimed a higher amount, after due verification of the claim, the petitioner was found to be entitled to receive an amount of ₹ 386 lacs only from the respondent company. The reflection made in the amended share holders agreement is consistent with the claim made in the company petition and there is no reason for this Court to hold the dispute raised by DCBL group as regards entitlement of the petitioner firm to receive the amount claimed by it, is not a bonafide dispute. 13. Since the respondent had placed heavy reliance on clause 14.15.1 of the share holders agreement, I deem it appropriate to reproduce the said clause herein below for ready reference:- 14.15.1 The past liabilities of the Company (for the period prior to 16 January 2012), as identified by the Parties on the date of this Agreement, shall be dealt within the following manner : (i) The liabilities amounting to 688.19 lakhs, the breakup whereof is set out at Annexure 6, shall be indemnified by the BW Group. In the event the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders or the letter by the Manager (Finance) of the Company. The execution of the work by the petitioner firm is also not in dispute. By the e-mail dated 19/12/2013, the petitioner company was informed by the representative of the respondent company that there are not enough funds in hand to clear the outstanding dues but attempts are being made to release some fund in that month only. Although the mail dated 19/03/2013 does mention about some gap in the balance sheet, yet, the respondent had at no point of time disputed the entitlement of the petitioner to receive the said amount. Therefore, merely because there is a mention of some gap in the balance, it would not be sufficient for this Court to presume that there was any serious discrepancy in the account maintained by the respondent company. 18. Again, on 21/01/2014, the representative of the respondent company had issued an e-mail categorically stating that the amount will be paid to the petitioner in the month of February and the petitioner has been asked to bear out for some time. On 06/02/2014, the representative of the respondent company had again issued an e-mail to the petitioner firm stating that the fund p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the issuance of the said letters the petitioner cannot be held guilty of committing fraud. The materials on record categorically establishes the debt towards the petitioner through a series of communication issued by the authorized representative of the respondent company and such communications are consistent with the other materials available on record including the entries made in Annexure-6 to the share holders agreement. Under the circumstances, I am of unhesitant opinion that this is a clear case where the petitioner has succeeded in establishing that there is a bona fide debt of the respondent company towards the petitioner for a sum of ₹ 1,77,03,540.68 p and the respondent company has failed to discharge its admitted debt due to paucity of funds. 22. However, in so far as the claim for payment of interest is concerned, the petitioner has failed to invite the attention of this Court to any clause in the contract agreement which permits payment of such interest on the outstanding dues at a mutually agreed rate. The question of payment of interest on delayed payment, in the absence of any binding contract between the parties, would depend on the facts and cir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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