Delhi High Court
Meera & Co. Ltd. vs Archies Greetings & Gifts Ltd. on 17 July, 2002
Author: M Mudgal
Bench: M Mudgal
JUDGMENT
Mukul Mudgal, J.
1. This winding up petition arises on the ground of alleged non-payment of dues of the petitioner for diesel generator set, said to be supplied to the respondent Company. The petition contends that total cost of the diesel generator set was Rs. 3,10,000/- and advance amount of Rs. 50,000/- was paid by the respondent Company to the petitioner Company.
2. The present winding up petition is based on the dishonouring of two cheques worth Rs. 2,60,000/- dated 13th April, 2000 and 18th April, 2000 which were said to be issued by the respondent Company under the signature of M/s Aqua & Power Controls. The respondent's stand in the present petition was taken by it contemporaneously even in reply to the statutory Notice issued under Section 434 of the Companies Act, sent by the petitioner which was incidentally sent by the petitioner both to the respondent Company and M/s Aqua & Power Controls. In the said reply to the aforesaid notice under Section 434 dated 26th April, 2001, the respondent's counsel denied that it had any deal with the petitioner Company and stated that the diesel generator set had been purchased from M/s Aqua & Power Controls. In the reply filed in this Court on 20th March, 2002, it has been contended that there was no privity of contract between the respondent Company and the petitioner Company and the order had been placed by the respondent On M/s Aqua & Power Controls and a sum of Rs. 3,10,000/- was towards the price of the generator set and Rs. 1,55,000/- towards the installation charges. It has been indicated in the reply that the averments in the winding up petition that an advance of Rs. 50,000/- was made by the respondent is a false statement. The petitioner has not chosen to counter this plea, as no rejoinder has been filed. It is clear from a perusal of the pleadings that the stand of the respondent Company that it had no relationship with the respondent company appears to be bona fide and reasonable and prima facie it does appear that the respondent Company did not enter into any contract with the petitioner Company.
3. Thus the respondent by its pleadings has prima facie demonstrated that the dues are not owned by it to the petitioner Company and may only by payable by M/s Aqua & Power Controls. IN any case,t he respondent has shown that it has made the payments by cheque to M/s Aqua & Power Controls and these cheques have been cleared as evident from the banker's certificate annexed to the reply.
4. Significantly the petitioner has not chosen to proceed against the M/s Aqua & Power Controls. Accordingly, it is very clear that there is prima facie no privity of contract between the respondents and the petitioner Company and the nature of dispute as sought to be raised in this winding up petition can not be determined in a winding up proceedings as there is a serious dispute about the privity of contract and the liability of the respondent Company towards the petitioner company and this cannot be determined in the present winding up petition.
5. The counsel for the petitioner was, however, asked to indicate whether the petitioner would like to withdraw these proceedings so as to proceed in an appropriate forum by adopting proceedings against the proper parties. However, no response was forthcoming which has led to the present judgment.
6. The winding up petition accordingly stands dismissed.
