Delhi High Court
Rst Semiconductors Private ... vs Make Indiasmart Private Limited on 5 September, 2018
$~CP-24
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 05.09.2018
+ CO.PET. 770/2015
RST SEMICONDUCTORS PRIVATE LIMITED..... Petitioner
Through Mr.Pranaynath Jha, Adv.
Versus
MAKE INDIASMART PRIVATE LIMITED ..... Respondent
Through Mr.Shivam Garg, Adv.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. On 20.08.2018 this court has passed the following order:-
"This petition is filed under sections 433, 434 and 439 of
the Company Act, 1956 (hereinafter referred to as the 'Act')
seeking winding up of the respondent company.
It is the case of the petitioner that a sum of
Rs.21,79,997.62 is due and payable to the petitioner for the
chips to be used in Rastriya Suraksha Beema Yojana Card (in
short the 'RSBY Card') supplied to the respondent. Reliance is
placed on the acknowledgement which is issued by the
respondent being Annexure P-4 whereby the respondent has
acknowledged their dues as on 03.03.2014 to the Rs.58,79,997/-
. Thereafter, the payments were released to the petitioner
leaving the said balance payable.
The learned counsel appearing for the respondent has,
however, taken me through their reply. In the reply, it has been
clearly stated that as per the terms of the agreement, the fact
which is not denied by the petitioner, that the chips were to be
CO.PET. 770/2015 Page 1 of 6
of Samsung/Infineon/NXP(from Philips). It is pleaded that the
chips that had been issued by the petitioner were not the make
of Samsung make and hence, debit notes have been issued to
the petitioner.
A perusal of the rejoinder filed by the petitioner would
show that there is no rebuttal of the allegation of the respondent,
namely, that the chips that were supplied by the petitioner were
not of Samsung make.
At this stage, the learned counsel for the petitioner seeks
some time to take instructions from the petitioner in this regard.
At his request, adjourned to 05.09.2018."
2. The case of the petitioner is that petitioner supplied to the
respondent RSBY cards in terms of various purchase orders placed
from time to time. Various invoices totalling Rs.1,87,89,997.62 were
raised out of which by March 2014 the respondent paid a sum of
Rs.1,34,10,000/-. An amount of Rs.21,79,997/- is claimed as unpaid.
3. It is also pleaded that the respondents have matched the
petitioner's ledger account and acknowledged the liability of
Rs.58,79,997.62 on 3.3.2014. As no payments were received a legal
notice was sent on 1.6.2015.
4. As noted above, the main defence of the respondent is that the
chips were to be of Samsung/Infineon/NXP make but are not of the
said make. Reliance has also been placed on two debit notes dated
31.3.2014 to claim that in view of incorrect chips supplied debit notes
were raised by the respondent. Respondent has also denied the
acknowledgement stating that the alleged acknowledgement dated
CO.PET. 770/2015 Page 2 of 6
3.3.2014 was never signed by the respondent.
5. I may note that the relevant portion of the Supply Agreement
dated 25.7.2013 reads as follows:-
"3.Quality of cards
1.1 SCOSTA certified RSBY card 64 KB with genuine
SAMSUNG/INFINEON/NXP (from Philips) Chip"
....
4. Acceptance Testing
4·1 MAKE INDIA SMART PVT. LTD reserves the right to
inspect the goods before dispatch and inspect RST
production facility. RST shall provide necessary assistance
and tools for their inspection and testing.
5. Payments &. Delivery Terms
Delivery to be within 3 days from PO
Payment to be released within 30 days after delivery."
6. Hence, the cards were to be of Samsung/INFINEON/NXP
make. The respondent also had a right to inspect the goods before
dispatch. The payment was to be made within 30 days after delivery.
The case of the respondent is that genuine Samsung Chips were not
supplied by the petitioner. I may note that in all 22 invoices were
raised by the petitioner from 8.8.2013 to 22.2.2014. Total 6,94,564
chips with cards have been supplied to the respondent. The respondent
never exercised the right prescribed in the agreement to inspect the
goods and inform the petitioner that the chips were not of the right
quality. Further though they were obliged to make payment within 30
days of the delivery, the respondent on receipt of the goods took no
such steps to make the payment or inform the petitioner that the chips
were not of the right quality.
CO.PET. 770/2015 Page 3 of 6
7. To support its plea that wrong chips were supplied the
respondent has claimed that on 31.3.2014 it had issued a debit note.
The debit note reads as follows:-
"MAKE INDIASMART PRIVATE LIMITED
M-8 ESSEL HOUSE
Asaf Ali Road, Delhi-11002
Debit Note
Dated 31 Mar 2014
Party's Name: Rst Semiconductors Pvt.Ltd.
Particulars Amount
AS PER AGREEMENT RST 18,93,453.00
IS NOT INBUILD
SAMSUNG/INFINEON/NXP
(FROM PHILIPS) CHIP IN
CARD SUPPLY TO THIS
REASON WE ARE
RETURN 66500 @ 28.48/-
CARD TO RST
Amount (in words):
Rs. Eighteen Lakh Ninety
Three Thousand Four
Hundred Fifty Three Only
-sd-
Authorised Signatory"
8. This debit note inspires no confidence. It is dated 31.03.2014,
namely, much after supply of the goods. There is nothing to show that
CO.PET. 770/2015 Page 4 of 6
the Debit notes were received by the petitioners. There is also nothing
placed on record by the respondents to show that these chips and cards
were returned as has been claimed in the debit notes.
Further the debit note claims 66,500 cards were returned. In the
reply that has been filed by the respondents there is an averment made
that the chips supplied by the petitioner are not of
SAMSUNG/INFINEONNXP (from Philips) chips as per the
agreement. However, the quantity of these chips that were not as per
the agreement is nowhere stated. Nearly 7 lac chips have been
supplied but the debit note pertains to only 66,500 chips. Pursuant to
supply of goods the respondent has paid large amounts above Rs.One
Crore to the plaintiff. Clearly, a joint reading of the debit note and the
reply of the respondent shows that the debit note is in the facts an
afterthought.
9. I may also look at the acknowledgement relied upon by the
petitioner. In the books of accounts of the respondent at the bottom the
stamp of the respondent company has been affixed and there is an
acknowledgement on 3.3.2014 for a sum of Rs.1,87,89,997. The
rubber stamp is affixed of the respondent company. Respondent has of
course denied having made such acknowledgement.
10. I have already concluded that the debit note relied upon by the
respondent to claim that the chips were not of the stated quality
inspires no confidence and cannot be believed. Hence, I need not go
into the controversy as to whether the acknowledgement dated
03.03.2014 was actually executed by the respondent or not.
11. In my opinion, the defence of the respondent is prima facie not
CO.PET. 770/2015 Page 5 of 6
bona fide. However in the facts of the case I am inclined to give an
opportunity to the respondent to prove its defence. If the respondent
were to deposit with the Registrar General of this court the said sum
of Rs. 21,79,997/- within four weeks from today, the petitioner would
be free to commence appropriate civil proceedings before a civil court.
In case such proceedings are commenced within six weeks of deposit
of the amount by the respondent, the said deposit would be subject to
outcome of the civil proceedings. The Registry will keep the said
amount in the appropriate fixed deposit. In the said civil proceedings,
the petitioner will be free to make an application under Section 14 of
the Limitation Act which will not be opposed by the respondent. In
case the respondent fails to deposit the said amount within four weeks
from today, this court would appoint the Official Liquidator as the
Liquidator of the respondent Company.
12. List on 15.10.2018.
JAYANT NATH, J.
SEPTEMBER 05, 2018
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