Delhi High Court
M/S Economic Transport ... vs M/S Multimax Engineering Works ... on 24 July, 2018
$~C-28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 24.07.2018
+ CO.PET. 556/2013
M/S ECONOMIC TRANSPORT ORGANIZATION LTD
..... Petitioner
Through : Mr. Faheem Shah, Advocate
versus
M/S MULTIMAX ENGINEERING WORKS PVT LTD
..... Respondent
Through : Mr. Ranjit Khatri and Ms. Sonam
Bharti, Advocates
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH , J. (Oral)
CA No.825/2018
In compliance with the last order of this court dated 15.03.2018,
Mr.Ravi Prakash Aggarwal, the Managing Director of the respondent
company has placed on record an affidavit along with an application being
CA No.825/2018 seeking condonation of delay of 01 day in filing the
accompanying affidavit.
The application is allowed and the delay of one day in filing the
accompanying affidavit is condoned. The affidavit is taken on record.
CO.PET. 556/2013
1. This petition is filed under Sections 433 (e), (f), 434 and 439 of the
Companies Act, 1956 seeking to wind up the respondent company.
2. The case of the petitioner is that the respondent approached the
petitioner to avail transportation services. The petitioner raised various bills
and invoices for services provided. Details of the invoices are stated in the
petition. It is pleaded that there is a total outstanding of Rs.5,27,825/-
against the respondent. It is pleaded that the respondent failed to pay the
necessary dues. It is also pleaded that in view of the delay, the respondent is
liable to pay interest @ 24% p. a. being a balance of Rs.67,852/-. As there
was continued default, on 06.08.2013, the petitioner sent a statutory demand
notice under Section 434 of the Companies Act, 1956 demanding the said
dues. The notice was duly served on the respondent. But there was no
response. Reliance is also placed on the minutes of a meeting that took
place in the second week of October, 2013, whereby the respondent
admitted its liability to the tune of Rs.5,71,350/-.
3. I have heard learned counsel for the parties. Learned counsel for the
petitioner has taken me through the minutes of the meeting of October,
2013. He has also relied upon an e-mail received from the respondent
whereby the respondent has acknowledged its outstanding dues of the said
sum of Rs.5,71,350/- by the e-mail dated 11.10.2013.
4. Learned counsel appearing for the respondent has made the following
submissions:-
(i) He submits that the facts are highly disputed and it is
appropriate that a civil court adjudicates these disputes as this
type of claims cannot be a subject matter of a winding up
petition;
(ii) He also points out that the petitioner has caused untold delay
for the delivery of the goods on account of which the customer
to whom goods were to be delivered, namely, Indian Oil
Corporation Limited had imposed liquidated damages for a sum
of Rs.1,70,700/-. He submits that these damages occurred on
account of the acts of the petitioner and hence the present
winding up petition would not arise.
(iii) He further submits that the statutory notice was issued by the
petitioner on 06.08.2013. By that date, he pleads that the goods
had not yet been delivered by the petitioner meaning thereby
that the amounts were not due and hence the statutory notice is
not valid and cannot be the basis for filing the present winding
up petition.
5. I may look at the two documents relied upon by the petitioner to plead
that there has been an acknowledgement and acceptance of the dues by the
respondent. I may first look at the e-mail written by the petitioner to the
respondent on 11.10.2013. As per this e-mail, the petitioner has written to
the respondent stating that there is an outstanding of Rs.5,71,350/- and the
work is complete. In the minutes of the meeting that was held subsequently
in the same month which were duly signed by the respondent company, the
respondent company agreed to pay to the petitioner a sum of Rs.5,71,350/-.
These minutes are not denied by the respondent. It is manifest that as on
that date, namely, October, 2013, the respondent has acknowledged their
outstanding liability, as noted above.
6. The only plausible defence appears to be is the liquidated damages
imposed upon them by IOCL for a sum of Rs.1,70,700/- as the respondent
claims that this took place on account of delayed delivery of the goods by
the petitioner. The petitioner has denied this contention stating that there
was no reason or occasion for the petitioner to withhold delivery of goods
after having received them from the respondents. It is on instructions of the
respondent that the goods were delivered to IOCL. Delivery was affected
when instructions were received from the respondent to deliver the goods.
7. However, even if I accept the plea of the respondent regarding the
imposition of liquidated damages of Rs.1,70,700/- by IOCL, the fact
remains that the respondent remains liable to pay a sum of Rs.5,71,350/-
minus liquidated damages of Rs.1,70,700/- being a total of Rs.4,00,650/-.
There is no explanation as to why the said amount of Rs.4,00,650/- has not
been paid by the respondent to the petitioner. In my view, the minutes dated
October 2013 clearly shows that the respondent has accepted its liability to
the above effect.
8. I may deal with another contention raised by the learned counsel for
the respondent. He has pleaded that the winding up petition was filed before
the delivery of goods, namely, in September 2013. He submits that the
documents now relied upon are of October 2013. I do not know how this
argument helps the respondent. The liability of the respondent to pay its
dues does not get washed away by this technical argument. A perusal of the
file shows that the petition was filed on 22.10.2013 though it is dated
27.09.2013. The transactions have taken place in September 2012 to June
2013. A statutory notice was sent on 06.08.2013. Even if the petition was
filed in September 2013, it does not do away with the liability of the
respondent. The plea is completely without merit
9. In my opinion, the respondent is unable to raise any bona fide dispute
regarding the dues of Rs.4,57,125/-
10. Accordingly, I admit the petition and appoint the Official Liquidator
attached to this Court 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.
11. However, in the interest of justice, the above order appointing the
Official Liquidator as the Provisional Liquidator shall stand suspended for a
period of six weeks in case the respondent made the necessary payment to
the petitioner of a sum of Rs.4,00,650/- with simple interest @ 9% p.a. from
the date amount fall due. In case the said payment is made within six weeks,
the aforesaid order appointing the Official Liquidator as the Provisional
Liquidator shall stand revoked.
12. List on 30.11.2018.
JAYANT NATH, J
JULY 24, 2018
V/SRwt
