Sobhagya Appliances and Another vs Gagan Marketing (P) Ltd.

Shantanu Kemkar, J.—This is a petition u/s 433 and 434 of the Companies Act (for short the Act) for winding up of the Respondent company on the ground that the company has indebted to the Petitioner and is not in a position to pay the Petitioner''s debts.

Briefly stated the Petitioner claims that he is dealing in the business of manufacturing, trading/marketing of ISI marked Gas Stoves and other appliances. During the course of the business with the Respondent company and its main/sister concerned namely Gagan Gases Ltd. running accounts were maintained by the Petitioner in its books of accounts in the name of Respondent company and also in the name of Gagan Gases Ltd. It is averred that number of cheques issued by the Respondent company in favour of the Petitioner towards dues of its amount were dishonoured. In the circumstances, a court case was filed by the Petitioner against the Respondent company to the Petitioner in full and final settlement of all the claims of the Petitioner. It was also stipulated through the said settlement deed that in case of non-payment of monetary installment continuously for a period of six months the Petitioner company shall have right to open all old cases instituted u/s 138 of the Negotiable Instrument. Act or under other provisions of law.

According to the Petitioner after execution of the said settlement deed dated 12.6.2003 the Petitioner had withdrawn all the cases filed by him against the Respondent company under the belief that Respondent company shall pay the dues. However, the Respondent had failed to adhere to the schedule of payment agreed to vide settlement deed dated 12.6.2003, in the circumstances the Petitioner sent a statutory notice dated 12.9.2004 calling upon the Petitioner to pay the due amount of Rs. 7,07,235 with interest @18% per annum and future interest at the same rate from the date of notice till realisation notifying the Respondent company that in default of such payment the Petitioner would be constrained to file a winding up petition against the Respondent company and civil suits or criminal proceedings against it. According to the Petitioner, the said notice was received back with remark ''refused to take its delivery''. Thus according to the Petitioner the Respondent through served with the notice did not pay the due amount. However, subsequently, disputing its liability the Respondent company sent a bank draft to the tune of only Rs. 20,000 in favour of the Petitioner towards part payment of the aforesaid dues. It has been averred by the Petitioner that as per the settlement deed amount of Rs. 7,07,235 is due from the Respondent along with notice fee of Rs. 11,000 interest @ 6% from 12.6.2003 to 12.3.2005 amolunting to Rs. 99,013 less amount paid by the Respondent after notice Rs. 20,000. According, total balance due as on 12.3.2005 was claiming to the tune of Rs. 7,97,248. The case of the Petitioner is that Respondent company is unable to pay and/or is neglecting to pay its debts as such it is commercially insolvent, in the circumstances, it would be just and equitable that the Respondent company should be wound up.

The Respondent on being noticed filed reply and have denied the averments made in the petition. It has been stated that dues claimed by the Petitioner company has been paid in full by the Respondent company during June, 2003 and afterwards either in cash or through demand draft. It has been further stated that it is false to say that Petitioner have ever filed any complaint u/s 138 of the Negotiable Instruments Act against the Respondent company. According to the Respondent it is for the reason that Respondent company has paid all the dues to the Petitioner company, the Petitioner company did not submit the statement of account in support of the claim. As regards the settlement deed dated 12.6.2003 a stand has been taken by the Respondent company that document filed by the Petitioner is not at all legible. It is the case of the Respondent that the Petitioner has filed this petition and is using the forum to extract more money from the Respondent company. It is also the case of the Respondent that the petition has not been filed in the prescribed format. The Respondent has stated that in view of the bona fide dispute about the dues between the Petitioner and the Respondent company this petition for winding up deserves to be dismissed.

In a rejoinder filed by the Petitioner, the Petitioner denied the contentions of the Respondent that the due amount has been paid to the Petitioner by the Respondent. It is stated that since the settlement deed has been filed by the Petitioner, therefore, there is no necessity of filing accounts statement.

Having heard counsel for the parties and after going through the averments made by them in it, I find that though averments have been made by the Petitioner that number of cheques have been issued by the Respondent company in favour of the Petitioner towards payment of its dues and they were dishonoured and, therefore, court cases were filed by the Petitioner against the Respondent company u/s 138 of the Negotiable Instruments Act and later they were withdrawn but the Petitioner did not submit and documentary evidence in support of these averments which could have easily been obtained and filed before this Court. Even after a specific denial has been made by the Respondent in that regard the Petitioner has not filed any authenticated document, satisfactory evidence about the alleged dues. Merely on the basis of a photostat copy of the settlement deed, it cannot be said that the debts are admitted debts more particularly when it was specifically stated by the Respondent that all the dues have already been paid to the Petitioner. The Respondent has stated that no court case u/s 138 of the Negotiable Instrument Act as alleged by the Petitioner was ever filed against it. In the circumstances it was for the Petitioner to have filed reliable material to prove his case for winding up the Respondent company under 433(e) of the Act. It is now well settled that if the debt is bona fide disputed and the defence is a substantial one, the court will not wind up the company. In the present case the debt is not free from doubt or controversy. It is not admitted but has been disputed. When the alleged debt of the Petitioner is disputed, denied, or doubted it will not be appropriate for this Court to allow the petition for winding up of the Respondent company.

In view of the aforesaid, in my considered view, no case is made out to order winding up of the company. Accordingly, Petitioner fails and it hereby dismissed.