Delhi High Court
A.R. Construction vs C.C.C. Infrasys Private Limited on 24 July, 2017
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 11th July, 2017
Pronounced on: 24th July, 2017
+ CO.PET. 548/2015
A.R. CONSTRUCTION ..... Petitioner
Through : Mr.L.B.Rai, Mr.Mohit Kumar
Sharma and Mr.Sumit Nagpal,
Advocates.
versus
C.C.C. INFRASYS PRIVATE LIMITED ..... Respondent
Through : Mr.Dalip Mehra, Advocate.
CORAM:
HON'BLE MR.JUSTICE YOGESH KHANNA
YOGESH KHANNA, J.
1. Petitioner has filed this petition under Section 433 and 434 of the
Companies Act, 1956 on the basis of a work order dated 29.09.2014
given by respondent for doing the M.S. Structural work. The rate agreed
between the petitioner and respondent was ₹74 per kg for the said work.
2. After getting the work order dated 29.09.2014, the petitioner
executed the work successfully at site and raised various invoices for the
same. The said invoices are of dated 27.10.2014, 01.12.2014 and
27.12.2014 for total sum of ₹49,54,382/-. The respondent paid an amount
of ₹23,26,500/- on account thus leaving a balance of ₹26,27,444/- . Some
extra work worth ₹3.00 Lac was directed to be done which also was
completed successfully. Hence, the respondent issued four cheques
towards balance payment of the invoices raised by the petitioner, of dated
16.01.2015 for ₹9,90,000/-; of dated 01.05.2015 for ₹7,46,444/-; of dated
15.05.2015 for ₹3,00,000/-; and of dated 19.05.2015 for ₹8,91,000/-. All
these cheques were dishonoured on the ground 'INSTR STALE
(instrument stale) / payment stopped by the drawer. A statutory notice
though issued on 03.06.2015, was ignored despite being served upon the
respondent company on 10.06.2015. Hence this petition was filed on
04.08.2015.
3. It is the petitioner's case that there was never any complaint
received from the respondent company qua the execution of the work but
that now in its reply to this petition, the respondent has raised concerns
about the quality of the work and also qua certain formalities left to be
completed -viz. (a) failure to submit measurements duly certified by M/s
Regant Garages Private Limited; (b) failure to furnish the check list
certified by M/s Regant Garages Private Limited; (c) submission of no
claim undertaking; submission of unconditional acceptance of final bill;
submissions of clearance certificate by M/s Regant Garages Private
Limited; (d) certain discrepancy in the bills raised by the petitioner and
(e) that such cheques were given only as a security.
4. These objections are raised by the respondent for the first time in
its reply to the petition for winding up before this court despite having
failed to even respond to the statutory notice and more so when the work
has long being executed. Taking such technical objections after many a
months of demands raised and after admitting its liability by handing
over four cheques for amount totaling to ₹29,27,444/- do show such pleas
are afterthought. Now, if the bills were not verified as alleged, then why
the cheques for balance amount of ₹29,27,444/- were given at the first
instance. The fact that the cheques were for the balance amount belies the
argument that these were for security. Now, if such cheques were given
in blank as alleged, then why the respondent did not took prior action to
inform the petitioner of not using such cheques or why it did not
challenge this fact by replying to the statutory notice of demand.
5. It is necessary to note that the petitioner had filed two criminal
complaints against the respondent company, under Section 138 of the
Negotiable Instruments Act, 1881, being CC No.393/2015 and CC
No.395/2015 for the first two dishonoured cheques; which complaints
were rather settled on 29.05.2015 wherein the respondent company
undertook to repay an amount of ₹12,50,000/- in installments in lieu of
such two dishonoured cheques. However after making payment of the
first two installments, the respondent company failed to pay further
amount on a plea that compromise was effected for all the four cheques
and not for the two cheques which were subject matter of the said
complaints.
6. Even while making statement in CC Nos. 393 & 395 (supra) the
respondent company did not allege that such cheques were given as
security or the petitioner did not complete the work or the formalities as
alleged in its reply to this petition. It shows the respondent yet again
neglected to pay the debt of the petitioner company by raising frivolous
issues. Rather the conduct of respondent in not paying the amount, so
settled in complaints aforesaid, without any cogent reasons do show its
inability to pay. The respondent cannot allege that it is though solvent
but would not pay admitted debt.
7. In IBA Health (I) Pvt. Ltd vs. Info-Drive Systems Sdn. Bhd 2010
(10) SCALE 151 where the Apex Court observed:-
"21. If the company refuses to pay on no genuine
and substantial grounds, it should not be able to
avoid the statutory demand. The law should be
allowed to proceed and if demand is not met and
an application for liquidation is filed under
Section 439 in reliance of the presumption under
Section 434(1)(a) that the company is unable to
pay it debts, the law should take its own course
and the company of course will have an
opportunity on the liquidation application to rebut
that presumption.
22. ... If the debt is an undisputedly owing, then it
should be paid. If the company refuses to pay,
without good reason, it should not be able to avoid
the statutory demand by proving, at the statutory
demand stage, that it is solvent. In other words,
commercial solvency can be seen as relevant as to
whether there was a dispute as to the debt, not as a
ground in itself, that means it cannot be
characterized as a stand alone ground."
8. The contention qua inferior quality of goods, as alleged by the
respondent in its reply, can be answered by referring to Lohmann
Rausher Gmbh v. Medisphere Marketing Pvt. Ltd. 117(2004) DLT 95
wherein the Court observed :-
"22. Undisputably, goods under first invoice were
received in the month of May, 2000 and under the
second invoice in the month of September, 2000.
Defendant, on receipt of the goods, did not
indicate to the plaintiff that the goods were
defective till as late as 31.12.2001. This was when
the plaintiff had served upon the defendant a legal
notice in the month of October, 2001.
xxx xxx
29. The long gap after which goods were ostensibly
rejected on the premise that they were
defective/sub-standard is clearly fatal to the
projected defense in the context of statutory law
being Section 41 and 42 of the Sale of Goods Act."
9. As the genuine/admitted demand of the petitioner was neglected by
the respondent company without any cogent, substantial or genuine
ground, the facts call for an appointment of the Provisional Liquidator.
10. In view of the above, the petition is admitted.
11. Citation be published in the "Statesman" (English edition) and
"Jansatta" (Hindi edition) in accordance with Company (Court) Rules,
1959.
12. However, publication of the citation and appointment of the
provisional liquidator is deferred and one opportunity is given to the
respondent company to pay the amount found already due and payable to
the petitioner with interest at the rate of 8% per annum with effect from
03.06.2015 when the statutory notice was served on the respondent
company. The amount be paid within one month failing which the
petitioner shall be entitled to publish the citation and apply for
appointment of the Provisional Liquidator.
13. List for further directions on 26th September, 2017.
YOGESH KHANNA, J
JULY 24, 2017
M/DU
