M/S Sethi Ply Palace vs M/S P.R.K Interiors Pvt Ltd
2018 Latest Caselaw 5038 Del

$~CP-25
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                                               Date of decision: 27.08.2018
+      CO.PET. 504/2014
       M/S SETHI PLY PALACE                               ..... Petitioner
                      Through            Mr. Rajeev Kr.Jha and Mr.Rajeev
                                         Kr.Sharma, Advs.

                          versus

       M/S P.R.K INTERIORS PVT LTD             ..... Respondent

Through Mr.Bijoy Kr.Pradhan, Mr.Rakesh Raushan and Mr. Pulkit Sharma, Advs.

CORAM:

HON'BLE MR. JUSTICE JAYANT NATH

JAYANT NATH, J.(ORAL)

1. This petition is filed under Sections 433(e) and (f), 434(1)(a) and 439(1)(b) of the Companies Act, 1956 for winding up of the respondent company. It has been pleaded in the petition that from 10.08.2010 to 10.09.2010, the respondent placed orders from time to time for supply of plywood and allied products manufactured by Greenply Industries Ltd. Goods worth Rs.9,71,640/- were supplied against various invoices. The respondent paid a sum of Rs.4 lakhs to the petitioner through RTGS on 01.11.2010 leaving a balance of Rs.5,71,640/-. On 03.11.2010 the respondent gave a cheque dated 27.10.2010 for Rs.4,56,122/-. However, the cheque when presented was returned unpaid with the remarks „Payment Stopped By the Drawer‟. It is further stated that the

representatives/accountants of the petitioner and the respondent after verifying the documents, settled the account and the respondent admitted its liability of Rs. 5,71,640/-. The respondent company acknowledged the outstanding dues on the ledger account of the petitioner. As payment was still not received, a legal notice was issued on 12.09.2013. As there was no response to the said legal notice, the present winding up petition has been filed.

2. I have heard learned counsel for the parties.

3. Learned counsel for the respondent states as follows:-

(i) He states that some of the invoices which have been attached to the petition are not drawn in favour of the respondent Company but are drawn in favour of some other entity. Hence, he submits that there is no liability of the respondent in this regard. He states that at best, there can be a liability of Rs.50,000/- only which the respondent Company is ready to pay.

(ii) He further states that the alleged acknowledgment which is relied upon by the petitioner is misplaced as the said document is not signed by the any authorised representative of the respondent. He submits that there is no Narender working in the respondent Company. Hence, he submits that the acknowledgement has no force in law.

(iii) He further submits that the post dated cheque that was given was a cheque for a security which has wrongly been presented for encashment by the petitioner

4. In response, the learned counsel for the petitioner has pointed out that the invoices were raised at the insistence of the respondent and some of the invoices were raised in favour of the customers of the respondent at the request of the respondent. He further submits that the post dated cheque and

the acknowledgement duly show that the amount of Rs.5,71,640/- is the liability of the respondent. He also pleads that the legal notice was duly delivered on the respondent to which there was no response.

5. It is a matter of fact that there is a cheque issued by the respondent for Rs.4,56,122/- dated 27.10.2010 which was returned unpaid by the bankers on the ground that there had been stopped payment instructions. Though in his submissions, learned counsel for the respondent has stated that this cheque was given as a security, however no such plea has been taken in the reply filed by the respondent. In the reply to paras 7 and 8 of the petition, the respondent pleads in its reply that the petitioner was required to deliver goods but failed to do so. Hence, though the post dated cheque was issued, the same was stopped as the petitioner failed to supply goods against the same to the respondent. It is also sought to be pleaded that the respondent was on account of the conduct of the petitioner constrained to purchase material from other vendors and hence, the stopped payment instructions were issued. It becomes manifest that the cheque was actually issued by the respondent against supply of goods and not as security as has been wrongly claimed by the learned counsel for the respondent. Regarding the plea that goods were not supplied by the respondent, no details are given. The plea is bereft of details and has no merits.

6. Regarding acknowledgment, a perusal of the acknowledgement issued by the respondent would show that on the ledger account a stamp of the respondent company has been affixed and Mr. Narender has signed it acknowledging the debt of Rs.5,71,640/- on 14.01.2012. In the reply filed the respondent‟s plea is that there is no person by the name of Narender authorised by the respondent to receive such a statement. There is no

categorical denial as to the fact that Mr.Narender is not an employee of the respondent Company. If a person had wrongly represented himself as a representative/employee of the respondent Company and was misusing the rubber stamp of the respondent company, surely the respondent Company would have taken steps against said Mr. Narender. No such steps have been taken.

7. There is another aspect which is noteworthy. A legal notice was sent by the petitioner Company on 12.09.2013. In the legal notice, the petitioner has claimed outstanding of Rs.5,71,640/-. A perusal of the reply filed by the respondent would show that the respondent accepts receipt of the legal notice but chose not to respond to the same.

8. In my opinion, there is no bona fide defence raised by the respondent. The cheque issued for Rs.4,56,122/- dated 27.10.2010, the acknowledgment dated 14.01.2012 by Mr.Narender read with the fact that when the legal notice was sent, there was no response by the respondent show that there is no defence or bona fide defence available to the respondent. Co-jointly all these facts lead to the conclusion that the said sum is due and payable. The faint and vague plea of denial by the respondent are make belief.

9. The settled legal position is that the debts due should be payable by the respondent company. It is only where the respondent company raises a bona fide dispute then no winding up petition would lie. Reference in this context may be had to the judgement of the Supreme Court in IBA Health (I) Pvt. Ltd. vs. Info-Drive Systems Sdn.Bhd., (2010) (4) CompLJ 481 (SC) where the Supreme Court held as follows:-

"17. The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an

application for winding-up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditor's debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding-up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding-up petition as a means of forcing the company to pay a bona fide disputed debt."

10. As noted above, in the facts of the above case the respondent company has failed to show any bona fide dispute.

11. I accordingly admit the present petition. 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. The cost of publication is to be borne by the petitioner who shall deposit a sum Rs.75,000/- with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. 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. 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.

12. However, in the interest of justice, I suspend the above order for four weeks to enable the respondent to pay the dues of the petitioner, namely, Rs.5,71,640/-. If the necessary payment is made within four weeks, the above order shall stand recalled.

13. List on 01.10.2018.

JAYANT NATH, J AUGUST 27, 2018 rb