EVA EXOTICA PVT LTD vs ADM AGRO INDUSTRIES INDIA PVT LTD

In this application under Section 433(e) of the Companies Act, 1956 (in short "the Act of 1956") the petitioning creditor has prayed for winding up of the respondent company on the ground of its inability to pay the admitted dues.

In support of the prayer in this application, the learned Counsel appearing for the petitioning creditor referred to the notice dated February 19, 2014 issued by the petitioning creditor to the company under Section 434 of the Act of 1956 calling upon the latter to pay an amount of Rs. 2,19,82,591/-, together with interest thereon at the rate of eighteen per cent, per annum from the due date of the bills till the date of actual payment. It is submitted that in response to the said notice dated February 19, 2014 the company, through its Advocate, issued a letter dated March 10, 2014 to the Advocate of the petitioner and in paragraph 4 thereof the company admitted its due of Rs. 1,24,46,238/-. The learned counsel relied upon paragraph 4 of the said letter dated March 10, 2014 issued by the Advocate for the company which reads as follows: "That in reply to paragraphs (4),(5),(6),(7),(8) and (9) at your legal notice dated 19.2.14, we, on behalf of our clients, inform you that against the balance sum of Rs. 2,19,82,584/- payable by our clients as alleged by you, our clients are entitled to a deduction of Rs. 95,36,353.00 in the above amount. The macro break up of the above deduction of Rs. 95,36,353.00 is under two heads i.e. under the heading of all supplied maize to our clients'' Ambala Unit by your clients is Rs. 64,93,274/- and Siliguri Unit is Rs. 30,43,079/-."

It was stressed by the petitioner that in view of the above statements in the said letter dated March 10, 2014, the company admitted its liability to pay Rs. 1,24,46,238/- to the petitioner and in view of the default of the company to pay the said amount, the present winding up application against it should be admitted.

However, it was sought to be contended on behalf of the company that the statements made in paragraph 4 of the said letter dated March 10, 2014 cannot be construed as an admission on the part of the company to pay the difference between Rs. 2,19,82,584/- and Rs. 95,36,353/-. It was urged that in the affidavit-in-opposition as well as the documents disclosed therein, it is the case of the company that the goods supplied by the petitioner were of inferior quality and it all along disputed the petitioner''s claim in this application. It was further argued for the company that in fact the petitioner who owes a huge amount of money to the company on account of defective goods supplied by it, as also on other grounds. Therefore, it was urged for the company that there exists a bona fide dispute with regard to the claim of the petitioner in the present application and the present application is not maintainable.

I have considered the materials on record, as well as the arguments advanced by the learned advocates appearing for the petitioner and the company, respectively. It is to be noted that neither in the said letter dated June 10, 2014 nor in its affidavit-inopposition, the company has alleged that it owes no money to the petitioner and on the contrary, the petitioner owes a huge amount of money to it. The transaction between the parties relating to this application arose before February 19, 2014, that is, the date of issuance of the notice under Section 434 of the Act of 1956 and the company has not yet filed any proceeding before any legal forum for realising its alleged dues from the petitioner.

Further, considering the statements made in paragraph 4 of the letter dated March 10, 2014, as quoted above, I am not inclined to accept the argument for the company that it had not admitted its liability to pay the differential amount of Rs. 2,19,82,584/- and Rs. 95,36,353/- amounting to Rs. 1,24,46,238/- to the petitioner. Accordingly, I am unable to accept the contention for the company that it has raised any bona fide dispute to the petitioner''s claim in this application for Rs. 1,24,46,238/.

For the reasons as aforesaid, this winding up application against the company is admitted for Rs. 1,24,46,238/- (Rupees One Crore Twenty Four Lacks Forty Six Thousand and Two Hundred and Thirty Eight only). If company pays the aforementioned amount to the petitioning creditor within February 16, 2018, the winding up application shall remain permanently stayed.

In the event of the failure on the part of the petitioner to pay Rs. 1, 24,46,238/- (One Crore Twenty Fourt Lakh Forty Six Thousand Two Hundred Thirty Eight only) within the time stipulated above, the petitioner shall advertise the winding up application once in the English newspaper, "The Statesman" and once in the Bengali newspaper, "Aajkal". In the said notices the petitioner shall mention that the winding up application shall appear before this Court after four weeks from the date thereof. The publication in the Official Gazette is dispensed with.

Let this application appear after eight weeks.

Urgent certified photostat copies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

All parties, including the newspapers shall act on copies of the certified Photostat copies of this order.