Delhi High Court
Pankaj Aluminium Industries Pvt. ... vs M/S. Bharat Aluminium Company ... on 23 March, 2011
Author: Manmohan
#35
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CO.PET. 131/2008
PANKAJ ALUMINIUM
INDUSTRIES PVT. LTD. ..... Petitioner
Through Mr. Krishna Kumar with
Mr. Kaustubh Shukla,
Advocates
Versus
M/S. BHARAT ALUMINIUM
COMPANY LTD. ..... Respondent
Through Mr. Rajiv Nayar, Senior
Advocate with Mr. P.C. Sen,
Advocates
% Date of Decision: 23rd March, 2011
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
1. Whether the Reporters of local papers may be allowed to see the judgment? No
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes
JUDGMENT
MANMOHAN, J : (Oral)
1. The present winding up petition has been filed under Sections
433(e) and 434 of the Companies Act, 1956 (for short "the Act").
2. The relevant facts of the present case are that both the
petitioner and respondent are engaged in the business of
manufacturing of aluminium products. During the course of their
business dealings, the petitioner had purchased from respondent,
aluminium products like ingots, wire rods and sheets/coils. For this
purpose, petitioner and respondent had executed a number of
Memorandums of Understanding. The first Memorandum of
Understanding executed between the parties dated 1 st April, 2003 is
reproduced hereinbelow:-
―Ref MKT/MOU/ Dated 1st April, 2003
MEMORANDUM OF UNDERSTADING
MOU BETWEEN M/S. ANISH METALS PVT. LTD., & Group
Companies and Bharat Aluminum Company Limited (BALCO)
FOR SALE OF CG/EC GRADE ALUMINUM PROPERZI RODS.
M/S. Anish Metals Pvt. Ltd. & Group Companies agrees to
purchase and Balco agrees to supply approx. 600 MT of CG/EC
Road during the period 1.04.2003 to 30.06.2003 on company
prices & terms.
1. Existing Price :
Product Existing Basic Price Existing Trade Discount
(Rs/T) (Rs/T)
Alu. CG Road 90500.00 6000.00
Alu. EC Road 91000.00 6000.00
2. Excise Duty : @ 16% extra
3. CST : @ 2% against Form ‗C'
4. Export Tax : @ 0.10% on invoice value will be
applicable.
5. Payment Terms : 100% payment in advance by way
of Cheque/DD/LC prior to dispatch
of material.
6. Monthly Quantity/Destination Discount : Will be applicable as
per Balco's policy.
7. Price Variation Clause : Prices, duties, taxes and all other
discounts shall be charged as ruling
on the date of dispatch.
8. Balco agrees to give MOU discount of Rs. 500/- PT subject
completion of minimum 200 M.T. per month during the period
1.04.2003 to 30.06.2003.
For Anish Matals Pvt. Ltd. For Bharat Aluminum Co. Ltd.
Sd/- Sd/-‖
3. Similar Memorandums of Understanding were also executed
between the parties on 1st July, 2003, 1st October, 2003 and 1st
January, 2004. Thereafter another Memorandum of Understanding
(MOU) dated 4th April, 2004 was executed between the petitioner
and respondent for the period 1st April, 2004 to 30th June, 2004. On
1st April, 2005, another MOU was executed between the parties for
the year 2005-2006.
4. On 31st March, 2005, petitioner and respondent reconciled
their accounts and the balance amount payable to the petitioner was
arrived at.
5. Between 11th January, 2006 and 24th January, 2006, petitioner
placed orders for purchase of various quantities of aluminium
products with the respondent. The petitioner also sent, by way of an
advance, a sum of Rs. 2 Crores to the respondent.
6. On 30th January, 2006, respondent informed petitioner that it
had adjusted an amount of Rs. 3,38,16,720/- from the sum of Rs.
3,52,26,499/- lying in its credit, as the amount of Rs. 3,38,16,720
was due to the respondent from petitioner's sister company, namely,
M/s. Anish Metals Pvt. Ltd. The aforesaid letter is reproduced
herebelow for ready reference:-
―January 30, 2006
M/s. Pankaj Aluminium Ltd.
106, CRK Wadi
1st Floor
114 V P Road
Mumbai 400 0084
Dear Sir,
A sum of Rs. 3,38,16,720/- is due to us from Anish Metals Pvt. Ltd.,
your sister concern. In such circumstances, we are adjusting the
aforesaid sum of Rs. 3,38,16,720/- from out of the sum of Rs.
3,52,26,499/- lying in the credit of Pankaj Aluminium Industries
Ltd. as on 30.1.2006. For the balance sum of Rs. 14,09,779/- lying
to your credit, supply of shall be made to you.
This is for your information.
Thanking you
For BHARAT ALUMINIUM COMPANY LIMITED
Sd/-
Associate Manager (Finance)‖
(emphasis supplied)
7. It is the petitioner's case that after they objected to the
aforesaid adjustment, the respondent not only accepted the
petitioner's stand but also dispatched to petitioner 26.379 metric
tons of aluminium wire rods, ingots and another aluminium
products. But later on respondent contrary to its earlier stand,
recalled the goods dispatched from Raipur.
8. Being aggrieved by the aforesaid decision, the petitioner on
22nd March, 2006 filed a suit bearing Suit No. 1071/2006 in the
Bombay High Court.
9. On 7th July, 2006, petitioner also issued a winding up notice to
the respondent. As there was no response to the said winding up
notice, the petitioner on 9th April, 2008 filed the present winding up
petition.
10. Mr. Krishna Kumar, learned counsel for petitioner submitted
that petitioner-company and M/s. Anish Metals Pvt. Ltd. are not
group companies. He stated that MOU had been executed by
different companies with respondent to avail of certain discount
offered by the respondent only on bulk purchases. According to
him, each of the companies with whom respondent had entered into
an MOU had separately made payment of goods ordered by it and it
was never the practice of these companies to make payment for
goods supplied by the respondent to any other company. He also
laid emphasis on the fact that it was not even the practice of the
respondent to adjust payment of one of the said companies towards
amount owed to respondent by any of the other companies.
11. Mr. Krishna Kumar further submitted that even if the
petitioner and M/s. Anish Metals Pvt. Ltd. were group companies,
still set off or adjustment could not have been made by the
respondent. In this connection, Mr. Krishna Kumar relied upon
decisions in P.C. Agarwala Vs. Payment of Wages Inspector, M.P.
and Ors., (2005) 8 SCC 104, Life Insurance Corporation of India
Vs. Escorts Ltd. and Ors., (1986) 1 SCC 264, Indowind Energy
Ltd. Vs. Wescare (I) Ltd. & Anr., AIR 2010 SC 1793 and Punjab
National Bank Vs. Bareja Knipping Fasteners Ltd. & Ors., (2001)
103 C.C. 958 (Punjab and Haryana High Court).
12. In the alternative, Mr. Krishna Kumar submitted that group
transactions, if any, came to end after the Settlement dated 31st
March, 2005.
13. Mr. Krishna Kumar lastly submitted that the conduct of the
respondent in the present case was improper inasmuch as the
respondent had misrepresented to the petitioner that it was going to
supply goods. According to him, it was only on respondent's
misrepresentation that petitioner had issued a pay order of Rs. 2
Crores.
14. On the other hand, Mr. Rajiv Nayar, learned senior counsel for
respondent submitted that the petitioner cannot wriggle out of its
own conduct. He submitted that having taken advantage of discount
as group companies, the petitioner cannot now seek to disclaim its
liability by urging that each company with whom respondent had
executed an MOU was a separate corporate personality.
15. Without prejudice to the aforesaid, Mr. Nayar submitted that
petitioner's conduct in the present case entitled this Court to lift the
corporate veil. In this connection, Mr. Nayar relied upon the
observation of the Supreme Court in New Horizons Ltd. Vs. Union
of India, (1995) 1 SCC 478, Life Insurance Corporation of India
(supra) and Singer India Ltd. Vs. Chander Mohan Chadha & Ors.,
(2004) 7 SCC 1. According to him, upon lifting the corporate veil,
petitioner could not say that it was not liable for its sister concerns or
that respondent could not have adjusted set off debts of Anish Metals
against petitioner's credit. Mr. Nayar emphasised that group
accounts were kept and dealings between respondent and petitioner
as well as other companies were as group companies.
16. Mr. Nayar also denied that the group transaction came to an
end after Settlement dated 31st March, 2005. According to him, the
Settlement was related to interest on account of late issuance of
credit notes by respondent, excess interest charged etc. Mr. Nayar
stated that the said Settlement nowhere mentioned that group
transaction had come to an end or that the Settlement was to settle all
liabilities in this regard. According to him, the Settlement itself
proposes a fresh reconciliation statement to be made and, therefore,
it was open ended.
17. Mr. Nayar emphatically denied that the respondent's conduct
was improper. In any event, he pointed out that the said issue was
sub-judice in the suit filed by the petitioner in the Bombay High
Court.
18. Mr. Nayar also laid emphasis on the fact that a learned Single
Judge of the Bombay High Court had specifically found that the
petitioner was not entitled to any interim relief as disputed questions
of facts were required to be adjudicated after giving the parties
liberty to lead evidence.
19. In rejoinder, Mr. Krishna Kumar submitted that order of the
learned Single Judge of Bombay High Court was an interim order
and could not operate as resjudicata in the present proceedings. He
also laid emphasis on the minutes of Settlement dated 31st March,
2005 to show that the respondent had dealt with each of the
companies with whom it had executed Memorandum of
Understanding as a separate independent corporate identity.
20. Having heard the parties and having perused the papers, I am
of the opinion that it would be first appropriate to outline the
principles which have to be kept in mind while deciding a winding
up petition. A Division Bench of this Court in German
Homeopathic Distributors Pvt. Ltd. vs. Deutsche Homeopathic-
Union DHU-Arznemittel Gmbh, (2009) 161 DLT 703 has held that
in a winding up proceeding, the following principles need to be kept
in perspective:
―12. In winding up proceedings it is necessary to
keep the following principles in perspective--
(i) If there is a bona fide dispute and the defence
is a substantial one, the court will not wind-up
the company;
(ii) Where the debt is undisputed the Court will
not act upon a defence that the company has
the ability to pay the debt but the company
chooses not to pay it;
(iii) Where the defence of the company is in good
faith and one of substance, and the defence is
likely to succeed in point of law, and the
company adduces prima facie proof of the
facts on which the defence depends, the
petition should be rejected;
(iv) The Court may consider the wishes of
creditors so long as these appear to be
justified;
(v) The machinery of winding up should not be
allowed to be utilised merely as a means of
realizing its debts. [For the above
propositions see Pradeshiya Industrial and
Investment Corporation of Uttar Pradesh vs.
North India Petro-Chemical Ltd., (1994) 2
Comp LJ 50 (SC) in which the observation in
Amalgamated Commercial Traders (P) Ltd.
vs. Krishnaswami, [1965] 35 Comp. Cas 456
(SC) and Madhusudan Gordhandas vs. Madhu
Woollen Industries (P) Ltd. [1972] 42 Comp.
Cas 125 (SC) have been paraphrased];
(vi) If the stance of the adversaries hangs in
balance it is always open to the Company
Court to order the Respondent Company to
deposit the disputed amount. This amount
may be retained by the Court and be held to
the credit of the suit, if any.[see Ambala Bus
Syndicate Pvt. Ltd. vs. Bala Finance Pvt. Ltd.
1983 (2) SCC 322 and Civil Appeal No.720 of
1999 arising out of SLP(C) No.14096 of 1998
- M/s. Nishal Enterprises vs. Apte
Amalgamations Ltd., decided on Febraury,5,
1999];
(vii) Generally speaking, an admission of debt
should be available and/or the defence that
has been adopted should appear to the Court
not to be dishonest and/or a moonshine, for
proceedings to continue. If there is
insufficient material in favour of the
petitioners, such disputes can be properly
adjudicated in a regular civil suit. It is
extremely helpful to draw upon the analogy of
a summary suit under Order XXXVII of the
Code of Civil Procedure. If the Company
Court reaches the conclusion that, had it been
exercising ordinary original civil jurisdiction
it would have granted unconditional leave to
defend, it must dismiss the winding up
petition.‖
21. In the present case, I do not have to lift the corporate veil as
petitioner and its group companies had throughout been representing
themselves to be a single economic entity. In fact, the
Memorandums of Understanding clearly show that they were
executed between the respondent on the one hand as well as
petitioner and other group companies on the other.
22. In this connection, the Memorandums of Understanding dated
04th April, 2004 and 01st April, 2005 are reproduced hereinbelow:-
i) 01st April, 2004
―Ref: MKT/MOU/QTRY/04-05 Dated 4th April, 2004
MOU Between M/s. Pankaj Group (Pankaj Aluminum/Ashish
Metals etc.) and Bharat Aluminum Company Limited (BALCO)
FOR SALE OF EC/CG/Alloy Grade Aluminum Wire Rods.
M/s. Pankaj Group (Pankaj Aluminum/Ashish Metals etc.) Agrees
to Purchase and Balco Agrees to supply approx. 600 MT of
EC/CG/Alloy Grade Aluminum Wire Rods during the period
1.04.2004 to 30.06.2004 on company Prices & Terms.‖
ii) 01st April, 2005
―Ref MKT/MOU/ANNUAL/05-06 Dated 1st April, 2005
MOU Between M/s. Pankaj Aluminum Industries Ltd. & Hiren
Aluminum Ltd. and Bharat Aluminum Company Limited (BALCO)
For Sale Of EC/CG/Alloy Grade Aluminum Wire Rods.
M/s. Pankaj Aluminum Industries Ltd. & Hiren Aluminum Ltd.
Agrees to Purchase and Balco Agrees To Supply Approx. 3600 MT
of EC/CG/Aloly Grade Aluminum Wire Rods During The Period
01-04-2005 to 31-03-2006 On Company Prices & Terms.‖
(emphasis supplied)
23. Moreover, petitioner's own applications to the respondent
explicitly stated that they were group companies. The relevant
extracts of the petitioner's representations are reproduced
hereinbelow:-
A) BHARAT ALUMINIUM COMPANY LIMITED
P.O Balconagar, korba-495684
Chhattisgarh
APPLICATION FORM FOR AUTHORISED DEALERSHIP FOR
ROLLED PRODUCTS
1. Name of the firm Anish Metals Pvt. Ltd.
xxx xxx xxx
X. Applied for any other name 1. PANKAJ METALS PVT. LTD.
sister firms, etc.), if yes 2. PANKAJ ALUM. INDS. LTD.
specify 3. PANKAJ EXTRUSION LTD.
4. HIREN ALUMINIUM LTD.
xxx xxx xxx
For ANISH METAL PRIVATE LTD.
Sd/-
Director/Auth. Signatory
Applicants Signature
Name:
B) BHARAT ALUMINIUM COMPANY LIMITED
P.O Balconagar, korba-495684
Chhattisgarh
APPLICATION FORM FOR AUTHORISED DEALERSHIP FOR
ROLLED PRODUCTS
1. Name of the firm Pankaj Aluminium Industries. Ltd.
xxx xxx xxx
Applied for any other name 1.ANISH METALS PVT. LTD.
sister firms, etc.), if yes 2. PANKAJ METALS PVT. LTD.
specify 3. PANKAJ EXTRUSION LTD.
4. HIREN ALUMINIUM LTD
xxx xxx xxx
For Pankaj Aluminium Ind. Ltd.
Sd/-
Director
Applicants Signature
Name:
C) BHARAT ALUMINIUM COMPANY LIMITED
P.O Balconagar, korba-495684
Chhattisgarh
APPLICATION FORM FOR AUTHORISED DEALERSHIP FOR
ROLLED PRODUCTS
1. Name of the firm PANKAJ EXTRUSION LIMITED.
xxx xxx xxx
Applied for any other name 1.ANISH METALS PVT. LTD.
sister firms, etc.), if yes 2. PANKAJ METALS PVT. LTD.
specify 3. PANKAJ ALUMINIUM IND.LTD.
4. HIREN ALUMINIUM LTD
xxx xxx xxx
For PANKAJ EXTRUSIONS LTD.
Sd/-
Authorised Signatory/Director‖
Applicants Signature
Name:
D) BHARAT ALUMINIUM COMPANY LIMITED
P.O Balconagar, korba-495684
Chhattisgarh
APPLICATION FORM FOR AUTHORISED DEALERSHIP FOR
ROLLED PRODUCTS
1. Name of the firm PANKAJ METALS PRIVATE LTD.
xxx xxx xxx
Applied for any other name 1.ANISH METALS PVT. LTD.
sister firms, etc., if yes 2. PANKAJ METALS PVT. LTD.
specify 3. PANKAJ EXTRUSION.LTD.
4. HIREN ALUMINIUM LTD.
xxx xxx xxx
For PANKAJ METAL PRIVATE LTD.
Sd/-
Director
Applicants Signature
Name:
E) BHARAT ALUMINIUM COMPANY LIMITED
P.O Balconagar, korba-495684
Chhattisgarh
APPLICATION FORM FOR AUTHORISED DEALERSHIP FOR
ROLLED PRODUCTS
1. Name of the firm HIREN ALUMINIUM LIMITED.
xxx xxx xxx
Applied for any other name 1.ANISH METALS PVT. LTD.
sister firms, etc.), if yes 2. PANKAJ METALS PVT. LTD.
specify 3. PANKAJ ALUM. INDS. LTD.
4. HIREN EXTRUSION LTD.‖
xxx xxx xxx
For Hiren Aluminium Ltd.
Sd/-
Director
Applicants Signature
Name:‖
(emphasis supplied)
24. Also from the documents placed on record, petitioner's group
companies kept a group account which reflected the total dues
payable by the respondent to the petitioner group companies. One
such statement of claim sent by the petitioner to respondent and
placed on record by the respondent is reproduced hereinbelow:-
ANISH METALS-GROUP
Name of the Party Party Amount Total
Code Claim Amt.
OLD PENDING CLAIMS WITH BHARAT ALU.CO. LTD.
As on 31.03.2002
Name of the Party Party Amount
Code
Excise Duty on Basic BC-204 85028
Price
BC-227 28035
Shortage of 304 Kgs 113063
(03/03/1999)
Total 113063
STATEMENT OF CLAIMS RECEIVABLE FROM BALCO
AS ON 30.09.2002
Name of the Party Party Amount
Code
Anish Metals Pvt. Ltd. BC-204/AA-452 1705213
Mumbai
Anish Metals Pvt. Ltd. BC-205/AA-453 873030
Ahmedabad
Anish Metals Pvt. Ltd. BC-236/AA-547 237865
Abu Road
Anish Metals Pvt. Ltd. BC-236/AA-605 445531
Silvassa
Pankaj Aluminium AP-307/338 1782791
Inds Ltd.
Pankaj Metals Pvt. Ltd. AP-308 2658085
Pankaj Extrusion Ltd. 341302
Hiren Aluminium Ltd. AH-156 881835
Total 8925650 8925650
EXCESS INTEREST CHARGED BY BALCO
Name of the Party Party Amount
Code
Avnish Metals Pvt. BC-204/205/ 879440
Ltd. 226 /236
Pankaj Metals Pvt. AP-308 894775
Ltd.
Pankaj Aluminium AP-307/308 15858
Inds. Ltd.
Total 1790073 1790073
Total Pending Claims as on 30.09.2002 10828786
25. It is apparent from the petitioner's letter dated 02nd January,
2004 that it had asked for refund of Rs.15,68,538/-, even though the
said amount was payable by the respondent to M/s. Hiren
Aluminium Ltd.--one of the petitioner's group companies. The
relevant portion of the letter dated 02nd January, 2004 is reproduced
hereinbelow:-
― PANKAJ
ALUMINIUM INDUSTIES LTD.
Cororate Office: 106-C, R.K. WADI, 114,
V.P. ROAD, MUMBAI - 400 004 (INDIA)
TEL.: ++91-22-3894202-03-04-05
FAX: ++ 91-22-389 4207
E-Mail: [email protected]
Web site: www.pankajgroup.com
Sales: 55-C, 1ST KHATTARALI LANE,
THAKURDWAR, MUMBAI 400002.
Tel: 3823726/27, 3853725.
FAX: 3821324/2428175
Date 02-01-2004
To
M/S. Bharat Aluminium Co. Ltd.
7, Kirol Raod, Vidya Vihar (West),
Mumbai-400 086.
Kind attention : Shri B.K. Bhatia, Regional Manager.
Sub: Double recovery of payment through negotiation of LC
documents against Invoice No.02/8959 dated 31.10.2003 for
Rs.818798/-.
Dear Sir,
xxx xxxx xxx
We would also like to draw your kind attention regarding our
refund of Rs.15,68,538/- in the account of Hiren Aluminium Ltd.
We have been following up the matter with your office since last so
many months for the issuance of pending credit notes but regret to
mention that, till date we have not even received the copies of the
credit notes which were settled by our representatives with your
SAG section at Korba during Nov' 03.
xxx xxxx xxx
................Please confirm us in writing regarding the adjustment
of this excess payment amount of Rs.818798/- against invoice
number 02/9232 dated 9-11-03 for Rs.907469/-, so that we can
make the balance payment of Rs.88671/- against the said invoice
as being confirmed by you.
Kindly look into the matter and respond us immediately
considering the urgency and seriousness of this issue. This time as
a special case we are releasing the payment, however, this type of
lapses should be avoided in future.
Thanking You.
Yours faithfully,
For Pankaj Aluminium Industries Ltd.
(Director)‖
(emphasis supplied)
26. The doctrine of single economic entity is not only well
established but also well recognized by Courts. In DHN Food
Distributors Ltd. and Others v. London Borough of Tower Hamlets
[1976] 3 ALL ER 462 at Page 467, the Court held as under:-
―.....We all know that in many respects a group of companies are
treated together for the purpose of general accounts, balance sheet
and profit and loss account. They are treated as one concern.
Professor Gower in his book on company law says : ‗there is
evidence of a general tendency to ignore the separate legal entities
of various companies within a group, and to look instead at the
economic entity of the whole group'. This is especially the case
when a parent company owns all the shares of the subsidiaries, so
much so that it can control every movement of the subsidiaries.
These subsidiaries are bound hand and foot to the parent company
and must do just what the parent company says. A striking
instance is the decision of the House of Lords in Harold Holdworth
& Co. (Wakefield) Ltd. v. Caddies. So here. This group is
virtually the same as a partnership in which all the three
companies are partners. They should not be treated separately so
as to be defeated on a technical point. They should not be deprived
of the compensation which should justly be payable for
disturbance. The three companies should, for present purposes, be
treated as one, and the parent company, DHN, should be treated as
that one. So that DHN are entitled to claim compensation
accordingly. It was not necessary for them to go through a
conveyancing device to get it.‖
27. The jurisdiction of Company Court is summary in nature and
the issues of conduct of the parties cannot be examined in the present
case as it involves disputed questions of fact.
28. The petitioner's further contention that a group transactions
came to an end after the Settlement dated 31st March, 2005 is
seriously disputed by the respondent inasmuch as, the respondent in
its additional affidavit dated 18th September, 2010 has averred that
the transaction for which adjustment had been made related to the
year, 2004. It is pertinent to mention that there is no specific denial
by the petitioner to the said averment in its response to the additional
affidavit. In any event, the same is a disputed question of fact which
can only be decided after giving the parties an opportunity to lead
evidence.
29. In fact, the Bombay High Court refused to grant the interim
prayer asked for by the petitioner in its suit on the ground that it
would amount to grant of final relief and further disputed questions
of fact could only be decided after the parties had led their evidence.
The relevant portion of the order passed by the learned Single Judge
of the Bombay High Court is reproduced hereinbelow:-
―As set out hereinabove, the main dispute raised by the
plaintiff in the suit, is that the defendants are not entitled to
appropriate Rs.3,38,16,720 or any other amount therefrom
towards the dues from Anish Metals Pvt. Ltd. from the
Plaintiff or any of its sister concerns and have sought a
declaration to that effect in terms of prayer clause (b) of the
plaint/suit. The defendants have joined an issued with the
Plaintiff by disputing the stand taken by the Plaintiff and have
made submissions justifying their action/conduct. At the final
hearing of the suit, an issue whether the Defendant was
entitled to adjust the said amount, will have to be framed and
decided after evidence of the parties is adduced and
arguments advanced.‖
30. It is pertinent to mention that the aforesaid finding of the
learned Single Judge has not been disturbed either by the Division
Bench or by the Supreme Court.
31. Keeping in view the aforesaid, I am of the opinion that the
defence raised by the respondent-company is bona fide as well as a
substantial one and it is neither dishonest nor moonshine.
32. Consequently, the present petition is dismissed, but without
any order as to costs.
MANMOHAN, J.
MARCH 23, 2011
rn/js
