Companies Act, 1956 – Sections 433, 434 and 439 – “neglect to pay” – debt is not an admitted debt and bonafide disputes are raised by the Company – it cannot be said that nonpayment of bonafide disputed debt would amount to “neglect to pay” so as to make liable under sections 433 and 434(1)(a) of the Act and thus, the present case would not fall under sections 433 and 434 of the Act – the respondent Company is a going concern and it cannot be said that the respondent Company has lost its financial substratum.
HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 07/06/2016
COMPANY PETITION NO. 238 of 2013
TOPICANA EXPORTS PVT LTD….Petitioner(s)
SHALIGRAM LAMINATES PVT LTD….Respondent(s)
Appearance: MR SA DESAI, ADVOCATE for the Petitioner(s) No. 1 MR HARSHIT S TOLIA, ADVOCATE for the Respondent(s) No. 1 MR PARTH S TOLIA, ADVOCATE for the Respondent(s) No. 1
1. Heard Mr. S.A. Desai, learned counsel for the petitioner and Mr. Harshit Tolia, learned counsel for the respondent.
2. By this petition under
Sections 433, 434 and 439 of the Companies Act, 1956
(hereinafter referred to as “the Act”), the petitioner has prayed for winding up of the respondent Company, viz., Shaligram Laminates Pvt. Ltd. and for other consequential prayers.
3. It is the case of the petitioner that the respondent Company placed orders for kraft paper with the petitioner Company in the month of March 2008 and on the basis of such order, the petitioner Company had supplied 23 tons (approx.) of paper through different challans and invoices at different rates aggregating to Rs.13,40,890/. It is specifically the case of the petitioner Company that the respondent Company paid an amount of Rs.12,55,534/, however did not pay the remaining amount of Rs.85,356/. It is further the case of the petitioner Company that again the respondent Company placed a further order of 100 tons of kraft paper by mail dated 11.06.2008 for which a bill of Rs.26 lakhs plus sales tax as applicable ex Kolkata was raised by the petitioner Company. It is further the case of the petitioner Company that the respondent Company issued two post dated cheques being cheque no.050185 and cheque no.050186 for an amount of Rs.13,39,000/ each. It is further the case of the petitioner Company that on the due date of the deposit of the first cheque of Rs.13.39 lakhs, the respondent Company requested the petitioner not to deposit the cheque due to paucity of funds and as a prudent businessman, the petitioner agreed to such a request. It is further contended by the petitioner Company that even though repeated requests were made, the respondent Company did not respond to the same and therefore, the petitioner Company deposited cheque no.050185, which came to be dishonoured. It is contended that after continuous followup, the respondent Company made payment of Rs.7 lacs on 10.12.2008. However, the balance amount of Rs.10,09,403/ remained unpaid in spite of repeated requests. The record also indicates that the petitioner Company has also resorted to the proceedings under section 138 of the Negotiable Instruments Act, which are pending before the competent Court. The record indicates that thereafter, the petitioner issued a statutory notice through its advocate to the respondent Company dated 30.04.2011 and a further notice dated 25.08.2011, which has been received by the respondent Company. Thereafter, the petitioner Company preferred company petition being Company Petition No.15/12, which came to be withdrawn with a liberty to file a fresh proceeding for the same claim as the said petition was not supported by affidavit as per Rule 21 read with Form 3 of the Company Court Rules and the said petition came to be disposed of vide order dated 23.07.2013 passed by this Court (Coram : K.M.Thaker,J.). After that the present petition is filed wherein notice came to be issued.
4. On notice being issued, the respondent Company has filed affidavit. It is contended that on receipt of the statutory notice, the respondent Company gave reply to the same by reply dated 05.05.2009, which is not placed on record. It is the case of the respondent Company that two consignments sent under bill no.21 dated 03.07.2008 amounting to Rs.3,99,789/ and another consignment of goods worth Rs.4,08,143/ under bill no.29 dated 11.08.2009 were found to be humid and clearly unusable and even though requests were made for replacing the same, till date, the same is not replaced and the same is lying in the godown of respondent Company. It is the case of the respondent Company that because of cordial relationship between the parties, intimation was given by way of telephonic talk and the respondent Company was repeatedly given assurance to replace the goods on the basis of long standing business relationship. It is contended that the amount claimed in this petition is a disputed amount and is not a legally enforceable debt and the very claim is subjudiced before the criminal court at Calcutta and therefore, the petition deserves to be dismissed. It is further reiterated in the reply that the damaged goods have not been replaced till date. It is also contended that the respondent company is a running concern with six employees and wagers are maintained by the respondent Company. The respondent Company has also denied the factum that the respondent Company has failed to make payment of Rs.10,09,403/. It is contended by the respondent Company that in fact, two cheques were given earlier for Rs.13,39,000/, which have been utilised by the petitioner Company inspite of making payment of Rs.7 lakhs, which was really due. The respondent Company has further contended that even the postal acknowledgment receipt does not contain the name or stamp of the respondent Company. The respondent Company has contended in its reply that no transaction at all has taken place between the parties after February, March 2009. The respondent Company has also denied the veracity of the account produced before this Court and has pointed out that the debts are not admitted debts. It is also contended that the respondent Company is a going concern and commercially solvent and hence, the petition deserves to be dismissed. Relying upon the judgment of this Court in the case of