S. Piara Singh vs S.H.R. Properties (P) Ltd.
1992 Latest Caselaw 259 Del

JUDGMENT

J.K. Mehra, J.

(1) I have heard the parties. This is a petition for winding up of the respondent company which is based on alleged contract for supply of 5 lift flush doors to the respondent company for a sum of Rs.30,000.00. The case of the petitioner is that the price was agreed to by the respondent on their quotation, a copy whereof is Annexure X-I to therejoinder. It is also contended that a cheque for Rs. 5000.00 was also given by the respondent on 17.7.89. The said cheque was dishonoured on presentation for the reasons "payment stopped". That means at the very outset the cheque given towards advance payment was dishonoured. No action appears to have been initiated by the petitioner against the company for such dishonour of the cheque. On the contrary it is contended that the raw material for making the said five doors and frames was purchased and the said doors were made and delivered. However, there is no delivery challan or any other documentary evidence of the delivery of the said wooden frames and the flush doors to enable the Court to ascertain as to who took the delivery of the saidgoods.

(2) The petitioner on their failure to obtain payment served the respondent with a notice dated 17/10/1989. The said notice appears to be not in tune with the allegations in the petition. While in para 6 of the petition it is alleged that the petitioner had supplied the goods in July 1989 to the respondent company on payment of Rs. 30,000.00 being the price of the five flush doors, whereas the notice which was issued in October long after the date of delivery states "it may be added even the order placed by you have failed to lift the goods as per agreement inspite of repeated requests made byclient. The goods worth more than Rs. 30,000.00 are still lying idle at your risks and costs."

(3) From the reading of the two documents it appears that the allegations ill para 6 of the petition are in correct. Furthermore, on the question of supply of the said doors the contractor who had supplied the lifts i.e. M/s.Beacon Kone had vide their letter dated 10/10/1990 clearly stated that We write to confirm that all the five wooden frames and flush doors installed in the above mentioned lift were supplied by us against your order placed onus as per our quotations dated 30.10.97". This was the letter written by Beacon Kone to Shri R.C. Sharma of respondent company. The same suppliers of the lifts were approached by the petitioner on 16/04/1991 with the plea that both the petitioner as well as M/s. Beacon Kone Ltd. may proceed against the respondent company to recover their dues. This letter appears to suggest supply of doors and that even the supplier of the lifts had not been paid by the respondent company. The petitioner has also filed a letter dated11.2.91 written by the said supplier of the lift to the respondent company wherein they seem to have taken a contrary stand to what was stated in their letter dated 10/10/1990 referred to hereinabove. In this they have referred to some arrangement or agreement which had been reached pursuant to the respondent's letter dated 4.2.91. Although the said letter is not filed,I had made Mr. Tandon to read from his own file the said letter which nowhere admits the existence of any concluded contract for the supply of the saiddoors. The respondent was directed to file a copy of this letter on record of this file. It may be noted that both the said letters dated 4.2.91 as well as the reply of M/s. Beacon Kone Ltd dated 11.2.91 are contradictory to each other.The petitioner has also expressed his readiness and willingness to take away the doors and frames supplied by him.

(4) The case of the respondent is that there was no concluded contract between the respondent and the petitioner and in fact immediately after the receipt of the quotation and giving of the cheque to the petitioner the Respondent informed the petitioner that they were not willing to go along with this contract and therefore they had stopped the payment on the very next day.They also have stated and replied to him and questioned as to how the doors and door frames found entry to place where the lifts were being installed. Mr.Tandon states that delivery might have been taken by the company supplying the lifts, but the respondent never took the delivery. However, I do not feel the need to comment upon this aspect but a perusal of these documents filed and the inconsistent pleas pointed out in the notice and allegations in the petition would clearly establish that the claim of the petitioner is a disputedone. In terms of the ratio of the judgment of the Hon'ble Supreme Court in the case of M. Gordhan Dass v. M.W. Industries Ltd. , I think it is not a fit case to be entertained for the winding up of the company and the dispute between the parties should be resolved by the forum of Civil Court because I do not find that the defense or dispute that the claim of the petitioner is sham and lacking in bonafides. The result is that the petition fails and is dismissed in the above circumstances. This, however, is without prejudice to the rights of the petitioner to approach the Civil Court for proper adjudication of his claim. The parties are left to bear their own costs in this petition.