Bhardwaj Gas Agency vs Appenzell Petroleum Products Pvt. Ltd.

Swatanter Kumar, J.—Bhardwaj Gas Agency has filed this petition under sections 433 and 434 read with section 439 of the Companies Act (hereinafter referred to as "the Act"), praying that Appenzell Petroleum Products Private Limited be ordered to be wound up for the reasons stated in the petition.

In order to substantiate this submission the petitioner-company has pleaded that they were appointed as LPG dealers for the area of Baijnath, District Kangra (H.P.), vide letter dated October 4, 1993, copy of the letter of such appointment is annexed to the petitioner as annexure P-1. As per the terms and conditions of the letter of appointment the petitioner-company claims to have made the following payments by draft or by cash against receipts details of which are as under :

--------------------------------------------------------------------- Amount deposited with date Your receipt No. and date --------------------------------------------------------------------- Rs. 2,45,000 through bank draft 284, dated July 2, 1994. No. 808407/08 dated June 27, 1994, drawn on PNB for the supply of Gas. Rs. 1,50,000 through bank draft 062, dated October 4, 1993. No. 352295 and 129972 drawn on SBI as security for pro-posed dealership of Appenzell. Rs. 40,000 through cheque 063, dated October 4, 1993, No. 354080, drawn on and 0425, dated December SBI as security for dealership 12, 1993. Rs. 40,000, dated December 21, 1993, drawn on PNB against 500 Nos. booking form. Rs. 1,275 by cash as 362, dated November 17, 1993. demonstration cylinder. Rs. 20,000 for explosive licence paid by cash. ---------------------------------------------------------------------

As the respondent failed to supply LPG cylinders and other ancillary items to the petitioner, the petitioner surrendered the dealership and requested the respondent to refund the amounts paid by them on various accounts. It is alleged that the petitioner-company made requests orally and in writing. They even served a legal notice through their counsel dated November 21, 1994, claiming the payment of Rs. 3,95,000 from the respondent. The copy of the notice served has been annexed to the petition as annexure P-11. After surrender of the dealership the respondent-company is stated to have issued a cheque for Rs. 1,75,250 on September 21, 1994, but the same was dishonoured on presentation. Having been left with no alternative, the petitioner-company was compelled to file this petition.

Upon notice and after great delay the respondents filed a reply denying the above stated facts also that the petitioner-company is not a registered dealer with the respondent-company. Challenge is also to the letter of appointment to the dealership. It was averred in the reply that no claim is due because the respondent-company has already supplied 150 cylinders to the petitioner-company which have been received by it. The respondent-company has vaguely denied the averments of the petitioner in corresponding paras, of the reply without dealing with any of them specifically.

In order to determine the basic dispute whether any payments are due to the petitioner-company from the respondent-company and if so, whether the respondent-company has raised any bona fide dispute for the non-payment of the dues, before entering into merits of the case, I consider it appropriate to refer to the conduct of the respondent-company even before this court. Vide order dated July 3, 1997, the learned company judge, had passed the following order :

"Mr. Chetan Mittal, advocate for the petitioner, None for the respondent.

In spite of a number of adjournments granted to the respondent-company, it has not filed its reply. On the last date of hearing the case was adjourned for today to enable the company to file its reply and that adjournment was granted subject to payment of Rs. 1,000 as costs. Today no one is present on behalf of the company nor have the costs been paid. The defence of the company is struck off.

To come up on July 31, 1997, for arguments.

(Sd.) N. K. Sodhi, Judge."

3-7-1997.

However, vide order dated July 31, 1997, the above order was recalled subject to payment of costs.

The stand taken by the respondent-company is self-contradictory, in terms. On the one hand it is denying that the petitioner-company was appointed as a dealer by the respondent-company while on the other hand it is stated that 150 cylinders were given to the petitioner-company. The petitioner has filed on record a copy of the letter of dealership which has been referred as annexure P-1 in para. 5 of the petition while in reply thereto vague averments have been made that the petitioner-company has been appointed by Mr. Arun Kumar and not by the respondent-company. A bare reading of annexure P-1 clearly shows that it has been issued on the letter head of the respondent-company and has been signed by the managing director of the company. The terms and conditions of this letter are standard terms applicable to such an agency. The payments which have been made by bank drafts or cash and the receipts thereof have been placed on record as annexures P-2 to P-6. In reply it is not averred that these receipts are either forged or not issued by the respondent-company. In fact some of the receipts have been admitted in the reply. It is also not averred in the reply that the bank drafts stated to have been issued in the name of the respondent-company have not been encashed by the respondent-company. The very conduct of the respondent-company shows that it has failed to discharge its obligation under the terms and conditions of the agreement as a result of which the petitioner was compelled to surrender the agency and claim the refund. It is not denied in the reply to paragraph 9 of the petition that the cheque was issued by the company. However, it is contended that the cheque was issued by Mr. Arun Kumar. The copy of the cheque placed on record shows that the cheque has been issued by and on behalf of the company, may be it is signed by Mr. Arun Kumar. The name of the company has been specified in the cheque. It is nobody''s case before me that the cheque is not issued by the company and the account number mentioned is not that of the company. No documents in support thereof from the bankers have been filed on record. Another very relevant piece of evidence on the record is annexures P-1 and 1O-A which are stated to be copies of the ledger account maintained by the respondent-company. The amounts indicated in the petition have been duly mentioned in these ledger accounts. No reply, much less a specific explanation, has been rendered in answer thereto. In other words I have no hesitation in coming to the conclusion that in spite of the notice being served upon the respondent-company it has failed to pay the debts which are apparently due and payable by it to the petitioner. The dispute raised by the respondent-company is merely a dispute for the sake of raising a dispute. It has no substance and is intended only to delay the present proceedings. Consequently, this petition has to be admitted, as the respondents have neglected and have been unable to pay their debts which are lawfully due to the petitioner-company.

The petition is ordered to be admitted. The notice of admission be published in the Tribune, Jansatta and Official Gazette of Chandigarh Administration. The notices so published shall give 14 days clear notice prior to the next date of hearing.

List the case for further directions on July 2, 1998.