Delhi High Court
Planet Advertising Pvt Ltd vs Ambience Pvt Ltd & Anr on 3 August, 2018
$~CP-23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 03.08.2018
+ CO.PET. 812/2015
PLANET ADVERTISING PVT LTD ..... Petitioner
Through Mr.Kunal Kalra and Mr.Ankur
Aggarwal, Advs.
versus
AMBIENCE PVT LTD & ANR. ..... Respondent
Through Ms.Nanda Devi and Mr.S.K.Jha,
Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. This petition is filed under section 433(e), 434 (a) read with section
439(b) of the Companies Act, 1956 seeking to wind up the respondent
company. The petitioner submits that it was approached by the respondent
company for displaying some of the outdoor advertisement. Purchase orders
were placed by the respondent company on 10.6.2014. Between July, 2014
to November, 2014 the petitioner states that he has carried out work of the
respondent company to its entire satisfaction and accordingly raised invoices
for the work done. Despite completion of the work it is pleaded that
payment of Rs.1,01,38,691/- has not been made. Petitioner claims to have
sent emails/SMSes to the respondent. Legal notice was sent on 20.08.2015.
Reply was received from the respondent where the respondent has denied
the submissions of the petitioner.
2. The respondents have filed their reply. In the reply the respondents
CO.PET. 812/2015 Page 1 of 5
state that respondent disputes the amount allegedly outstanding in view of
the fact that the petitioner has failed to provide the requisite services as per
agreements. It is stated that the petitioner has failed to honour the terms of
the agreement of service entered into by them with the respondent. Further,
it is stated that the materials used in the advertising campaigns were not as
per agreements. Based on this, the claim of the petitioner has been denied.
3. I have heard learned counsel for the parties. Learned counsel for the
petitioner has relied upon certain emails and whatsapp messages received
from the respondent to submit that there was admission of liability. It has
also been pleaded that the total outstanding liability was to the tune of
Rs.1,03,93,398/-. It has also been stated that as there was inordinate delay in
making payment to the petitioner the petitioner on the request of the
respondent issued fresh invoices in the name of „Ambience Projects and
Infrastructure Pvt.Ltd.‟. It was stated by the respondent that there was
shortage of funds in the respondent company. Hence, in deference to the
wishes of the respondent company a consolidated invoice for Rs.53,66,278/-
(excluding service tax) was issued in the name of „Ambience Projects and
Infrastructure Pvt. Ltd.‟.
4. Learned counsel for the respondent has vehemently denied the dues.
She states that the dues are bonafidely disputed. She has taken me through
Annexure P-5 of the petition where an extract from some email written by
the petitioner has been reproduced stating that the petitioner is expecting the
bill of Rs.53,66,278/- to be cleared within a week. She has also relied upon
an email dated 31.7.2014 where the respondents have communicated to the
petitioner some defects in the work carried out. Based on these documents
she submits that there are no admitted dues payable to the petitioner. The
CO.PET. 812/2015 Page 2 of 5
work that was done by the petitioner was found to be defective. Some
amount she submits would be payable but the same is not quantified. She
further submits that Civil Suit will be an appropriate remedy in this case for
the petitioner to claim its dues. She relies upon judgment of this court in
Focus Management Consultants Pvt. Ltd. vs. Second Foundation India
Pvt. Limited, (2007) 3 CompLJ127 (Del).
5. I may refer to some of the documents relied upon by the petitioner.
The petitioner has placed on record an email dated 22.12.2014 whereby the
petitioner has pointed out regarding an outstanding amount of
Rs.1,03,93,398/- to the respondent. The respondent has replied on the same
date stating that once the cheques are ready intimation will be sent to the
petitioner. Hence, there is no denial of the dues payable to the petitioner.
6. Similarly, learned counsel for the petitioner has relied upon an
exchange of whatsapp message which was sent on 17.11.2014 where the
reply was received on 17.11.2014 stating that the work will be taken care of.
Again there is no denial of the dues of the petitioner.
7. I also cannot help noticing that in the reply the respondent do not
deny that the order was placed on the petitioner. The plea is that the
petitioner failed to provide the agreed/approved sites for the
agreed/approved size and location under the agreements including Raja
Garden and DND Flyover Delhi to Noida. It is further stated that the
petitioner never provided the services as per the agreements and failed to
change the damaged flexes within the agreed time. These pleas are being
taken in the reply bereft of any document or detail. No communication or
document is sought to be placed on record whereby the respondent in the
past had informed the petitioner of its failure to comply with the terms and
CO.PET. 812/2015 Page 3 of 5
conditions of the purchase order. There is not even one document place on
record to show that the petitioner were informed that they have failed to
adhere to the terms and conditions of the purchase orders or that the work
being performed by them is defective. In fact what the learned counsel for
the respondent has relied upon is a communication dated 31.07.2014
allegedly written by the respondent regarding some defects. This
communication has been attached by the petitioner themselves. This is the
solitary communication which shows some defects were there in the work
done by the petitioner. Presumably, the work would have been completed by
the petitioner as there is no subsequent correspondence. Clearly, the defence
raised is not bona fide.
8. Today in the course of submissions that were made by the learned
counsel for the respondent, she did not deny that no work has been done by
the petitioner. Her plea was that some work had been done by the petitioner
and there were some defects in the work that was done. Based on this she
pleaded that some amount may be payable to the petitioner but the same is
not quantifiable.
Much stress was also laid by the learned counsel for the respondent on
the fact that there are two different amount being claimed by the petitioner,
namely, the outstanding amount of Rs.1,03,93,398/- and another amount
claimed as due was Rs.53,66,278/-. Learned counsel for the petitioner had
tried to explain away the said differences stating that as there was delay in
clearance of the bills by the respondent, on the request of the respondent, a
bill for Rs.58,66,278/- was raised on a sister concern which was said to have
funds to pay dues.
9. Keeping in view these facts, it is manifest that some amount does
CO.PET. 812/2015 Page 4 of 5
remain payable by the respondent to the petitioner.
10. In Madhusudan Gordhandas & Co. Vs. Madhu Wollen Industries
Pvt. Ltd., AIR 1971 SC 2600 the Supreme Court held as follows:-
"22.....Where however there is no doubt that the company owes
the creditor a debt entitling him to a winding up order but the
exact amount of the debt is disputed the court will make a
winding up order without requiring the creditor to quantity the
debt precisely (See Re. Tweeds Garages Ltd. [1962] Ch. 406...."
11. In view of the above legal position, I admit the present petition.
However I defer appointing the OL as the PL till the next date of hearing.
12. In the meantime, the respondent is free to deposit a sum of
Rs.53,66,278/- within four weeks from today with the Registrar General of
this Court. If such amount is deposited the petitioner would be free to have
the said amount released. In that eventuality, the order admitting the petition
shall stand revoked and the petition shall stand disposed of. Further the
petitioner would be free to approach civil court by way of appropriate civil
proceedings to claim any further amount that it seeks. In case such civil
proceedings are commenced, nothing stated herein would bind the parties to
the findings recorded above.
13. List on 11.12.2018.
JAYANT NATH, J.
AUGUST 03, 2018/n
