Neeraj Batra vs M/S Psa Nitrogen Ltd
2018 Latest Caselaw 2072 Del

$~CP-22
*      IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                            Date of decision: 04.04.2018


+      CO.PET. 526/2012
       NEERAJ BATRA                                     ..... Petitioner
                          Through      Mr.T.K.Tiwari, Adv.

                          versus

       M/S PSA NITROGEN LTD                             ..... Respondent

                     Through           Mr.Vikas Agarwal, Ms.Shaili Pande
                                       and Mr.Amir, Advs.

       CORAM:
       HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)

1. This petition is filed under section 433(e), 434 and 439 of the Companies Act, 1956 for winding up of the respondent company. The case of the petitioner is that the petitioner has been supplying steel products on regular basis to the respondent company as per their orders. It has been pleaded that after giving due credit of all payments made by the respondent company to the petitioner after March 2011 an outstanding amount of Rs.25,05,676/- was due and payable by the respondent company. On 1.6.2012 the petitioner issued a legal notice to the respondent demanding the payment of the outstanding dues. A response was received from the respondent on 10.7.2012 stating that a reply is being framed to the said legal notice. On 10.9.2012 the petitioner issued a statutory legal notice to which

no reply has been received and thereafter the present winding up petition has been filed.

2. The respondents have entered appearance and filed their reply. In their reply it has been pleaded that the debt is a disputed debt and the present winding up petition would not lie for the said purpose. He also pleaded that the respondent company is a running concern with a healthy balance sheet showing profits. It is also pleaded that the respondent company is buying Dish ends from the petitioner and there is bona fide dispute in respect of many bills raised by the petitioner against the respondent company. As an example reference was made to invoice No.233 dated 29.6.2010. It is pleaded that the bill amount has incorrect calculation in view of wrong statements made regarding the weight and density of the steel. The weight of steel which has been supplied is overstated in the bill. In such manner the rates are said to be overstated and excessive in several bills and are not in terms of the order placed.

3. I have heard learned counsel for the parties. Learned counsel for the petitioner has pointed out to Annexure D filed by the respondents themselves which is the Statement of Taxable Income filed for income tax purpose for the Assessment Year 2012-13. It has been pointed out that in the list which is attached to the Statement of Taxable Income under the heading "Trade Payable on 31.3.2012" a sum of Rs.13,23,057/- is shown as outstanding and payable to the petitioner. Hence, he pleads that this is an admission of claim by the respondent.

4. Learned counsel for the respondent has submitted that this statement of account which is filed by the respondent is not an admission of dues payable by the respondent. It is only a Statement and cannot be construed as

an admission. He also submits that the petitioner has already filed a suit for recovery of the amount which is pending before District Court. He submits that the respondent has a bona fide and valid defence and is contesting the said suit and written statement to that effect has also been filed.

5. I may only note a few things. The balance sheet filed by the respondent Annexure D shows the Statement of Taxable income of the respondent. The respondent themselves have filed the balance sheet alongwith their reply to show the respondent to be a profitable concern. One of the lists which is attached to this document is a "Statement indicating the Trade Payable as on 31.3.2012". The names of various concerns are stated in a list which is spread over three pages. Under the heading of Batra Steel an outstanding is shown as Rs.13,23,057/- This is a copy of document duly signed and stamped by the respondent company which has been placed on record. In my opinion, it is a clear admission of a debt due and payable to the petitioner.

6. I may also note that the legal notice was served by the petitioner on 1.6.2012. In the said legal notice the details of the 13 invoices said to be outstanding on the basis of which the petitioner was claiming the sum of Rs.25,05,676/- were stated. The respondent have duly received this notice. They have admitted so in their communication dated 10.7.2012. However, no reply to this legal notice was ever sent. Same is the fate of the subsequent statutory notices that were sent on 10.9.2012 by the petitioner.

7. I may also note that the defence of the respondent pointing out alleged defects in the bill appear to be only an afterthought inasmuch as these have been stated for the first time when their reply was filed to this petition. Nowhere in the reply it is pleaded that any communication was sent to the

petitioners pointing out defects in the goods supplied or the fact that the invoice sent by the petitioner are inflated and do not reflect the correct dues. One would expect that when a defective invoice is received, a protest would be lodged immediately. Hence, the plea that the bills are erroneous is a clear afterthought and cannot be accepted especially keeping in view the admission stated in the statement of account for the Assessment Year 2012- 13 filed by the respondent themselves.

8. As far as pendency of the suit is concerned, in my opinion, the petitioner filed this winding up petition in November 2012. The suit was filed in August 2014, namely, subsequently. As it is a subsequent development the filing of the present winding up petition would not be affected. For the purpose of saving limitation the petitioner would be fully justified in filing a suit during pendency of the present winding up petition. In the absence of having filed the suit, the claim of the petitioner as of today would have become barred by limitation. In that eventuality, if this court today was to come to a conclusion that the parties should be relegated to a civil suit, the claim of the petitioner would be barred by limitation.

9. The above proposition was upheld by this court in Anil Pratap Singh Chauhan vs. Onida Savak Ltd. etc., AIR 2003 Delhi 252. In that case, the petitioner had filed winding up petitions against the defendant therein which were dismissed by reasoned judgments holding that the defendant in that case had made a bona fide defence. It was the plea of the plaintiff therein that when the plaintiff had instituted the company petitions, the period of limitation had not expired. Therefore, the petitioner sought exclusion of the time taken in prosecution of the winding up petitions under Section 14 of the Limitation Act. This court held as follows:-

"17. .... In view of the foregoing discussions, it is held that the plaintiff is not entitled to the benefit of exclusion of time during which the winding up petitions relating to each of the five suits were pending for the purposes of computing the limitation for the suits instituted by the plaintiffs. The essential conditions of Section 14 of the Limitation Act are not fulfilled, as discussed earlier. The winding up petitions having been dismissed on merits and not on account of any defect of jurisdiction or a defect of a like nature. Section 14 cannot be pressed into service. Besides, the nature of the relief in a winding up petition is entirely different and distinct from that in a suit for recovery...."

10. In the above context reference may also be had to the judgment of the Patna High Court in Central Bank of India v. Sukhani Mining and Engineering Industries Pvt. Ltd. & Ors., [1977] 47 CompCas 1(Patna), where the court was dealing with a situation where the petitioner therein during pendency of the winding up petition had filed a suit for realisation of its money. The Patna High Court held as follows:-

"20. There is thus no decision either of the Indian or of English courts which I could lay my hands on or which could be brought to my notice to show that the mere fact that a creditor files a suit for the realisation of the debt could debar him from proceeding with his petition for winding up the company. There is nothing either to show that the court in such circumstances has no jurisdiction to proceed with the winding-up proceeding or that it would even be proper to stay the winding -up proceeding itself or dismiss the petition for that reason alone."

Hence, mere filing of the suit after a petitioner has filed a winding up petition cannot ipso fact bar on consideration of the winding up petition.

11. In my opinion, a clear case is made out in this case that the

respondents are despite having admitted the dues of Rs.13,23,057/- refusing to pay. Respondent company is hence unable to pay its debt.

12. Keeping in view the above, the petition is admitted and the Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers „Statesman‟ (English) and „Veer Arjun‟ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing. Costs of Rs.75,000/- will be paid by the petitioner for the publication. The Official Liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him. OL is also authorised to break open the locks of the office of the respondent company in case the need arises. At the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. It will also be open to the Official Liquidator to seek police help in the discharge of his duties, if he considers it appropriate to do so. The Official Liquidator to take all further steps that may be necessary in this regard to protect the premises and assets of the respondent-company.

13. In the interest of justice, the above order is held in abeyance for a period of 30 days. In case the respondent pays to the petitioner the said sum of Rs.13,23,057/- the order would be liable to be recalled. Needless to add that in case the respondent chooses to pay a sum of Rs.13,23,057/- to the petitioner the suit between the parties would continue for the balance amount. Any observations made herein would not in any manner prejudice the parties while contesting the aforesaid suit on merits.

14. A copy of the order be given Dasti under signatures of the Court Master to learned counsel for the respondent, as requested.

15. List on 17.7.2018.

JAYANT NATH, J APRIL 04, 2018/n