Bombay High Court
M/S. Arun Kumar Engineer And ... vs Finolex Cables Limited on 10 October, 2012
Bench: Anoop V.Mohta
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
COMPANY PETITION NO. 249 OF 2011.
M/s. Arun Kumar Engineer and Contractors,
a Proprietory Concern having address at 23/19,
Old Rajinder Nagar, New Delhi-110 060.. ..Petitioner.
vs.
Finolex Cables Limited,
having its registered office at 26-27,
Mumbai-Pune Road,
Pimpri, Pune-411 018.
ig ....
..Respondent.
Mr. Rakesh K. Agarwal, for Petitioner.
Mr. Vishal Kanade, a/w. Mr. Himanshu V. Pradhan, i/b. Chitnis & Co.,
for Respondent.
....
CORAM :- ANOOP V. MOHTA, J.
DATE :- 10TH OCTOBER, 2012.
ORAL JUDGMENT :
Heard Finally.
2. The Petitioner has invoked under section 433 and 434 of the
Companies Act, 1956, based upon the invoice so raised in the
Petition for Rs. 33,79,914 and 76 paise.
3. The Petitioner was assigned the work of land development
(filling of ground) at Rooree, by work order dated 11 th August 2006.
The time was the essence of the work. The agreed date was 15 th
September 2006. The Petitioner proceeded accordingly. The bills
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were raised from time to time. The Petitioner also received part
payment.
4. The work could not be completed in time. Therefore, on same
terms and conditions, revised work order dated 13 th October 2006
was issued. The work ultimately completed by 26 th December 2006.
The Petitioner accordingly forwarded its bill on 14th March 2007.
The Petitioner received payment of Rs. 26,10,411/- on 6th April
2007. The balance was Rs. 25,87,895/-. The Respondent Company
after due negotiations and discussion, admitted the liability to the
tune of Rs. 13,05,654/- and disputed the liability to pay balance of
Rs. 12,82,241/- by letter dated 22nd October 2007. There is no
dispute that the Petitioner received Rs. 13,05,654/- by endorsing it
as full and final payment.
5. The issue was raised later on and basically of the deduction of
liquidated damages of Rs. 8,49,185/- which the Respondent
Company calculated from 15th September 2006, that was the date of
the completion of the work as per the first work order.
6. The Petitioner therefore, filed the present Petition, apart from
claiming due and payable amount as per the bills, the deducted
amount and 24 per cent interest from 14th March 2007. This itself, in
my view, cannot be stated to be admitted and/or crystalized amount
for the purpose of passing any order under the Company Petition. By
treating this amount as due and payable, the demand notice issued
and served, by itself, is not sufficient to accept the case of the
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Petitioner. In the present case in view of the above facts and
circumstances, there is nothing on record to show that the
Respondent Company at any point of time agreed and/or accepted
the demand so raised. The agreed amount admittedly paid and
received by the Petitioner. The rest of the amount so claimed have
based upon disputed facts and the interpretation of the land
development agreement in-question.
7. The other submission that the invocation of liquidated damage
costs was contrary to the agreement as the revised work was
awarded in October, though it was based upon the same terms and
conditions, the date of completion remained to be 15 th September
2006, is also need trial.
8. The justification of awarding the revised contract and the fact
that the work was completed in December and the invocation of the
liquidated damages by the Respondent Company, is again a matter of
evidence.
9. The submission was also made that the Petitioner accepted the
amount under pressure and as they were in need of money. The
acknowledgment and/or acceptance of the admitted amount,
received by the Petitioner towards the full and final settlement
concludes the issue for the purpose of winding up petition.
Therefore, having one settled the matter, the averment and/or
allegations given of coercion and or undue influence just cannot be
gone into the Company Petition.
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10. I have gone through the various documents and referring to
the dates. The claims are beyond limitation even as per the
submission of the learned Counsel for the Respondent. At this stage,
not inclined to go into the details in view of the above admitted
position on record. The Petitioner is at liberty to take the other
remedy, if available.
11. So far as the present Petition is concerned, the scope and the
purpose of the provisions and as the disputed questions of facts are
raised and as the amount is not crystalized and it is difficult to accept
the case of the Petitioner that the amount is due and payable on the
date of the demand notice and/or as on the date of the filing of the
Petition, therefore, there is no case made out by the Petitioner. The
Company Petition is dismissed.
12. All points are kept open.
( ANOOP V. MOHTA, J. )
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