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2003 DIGILAW 796 (RAJ)

Ajanta Enterprises v. Anita Tex Print Ltd.

2003-05-23

S.K.KESHOTE

body2003
JUDGMENT 1. - Heard the learned counsel for the petitioner. 2. This petition presented on 13-5-2003 is under Sections 433 and 439 of the Companies Act, 1956 (for short, 'the Act, 1956'). Therein the prayer is made that M/s. Anita Tex Print Limited, SP35, RHCO Industrial Area, Kaladera-3033801, Chomu, District Jaipur, the respondent company be wound up. Further prayer has been made to put all the movable and immovable assets of the respondent company in the charge of the Official Liquidator attached to this Court immediately, even during the proceedings, and that the Official Liquidator be directed to make payment of the petitioner of the amount of dues along with interest at the rate of 18 per cent per annum till the date of realization. Award of costs has also been prayed for. 3. In the petition it is alleged that the chemicals costing Rs. 1,64,277 was purchased by the respondent-company from the petitioner. In para No. 6 of the petition the petitioner stated that he sold and the respondent company purchased the chemical goods and regarding this he maintained accounts in the books and a Statement of Account and bill was sent to the respondent company previously asking the payments of Rs. 1,64,277 and Rs. 40,000 for which the respondent company gave cheques, which were dishonoured. On the record the petitioner has not produced any material whatsoever to prove that the respondent company has purchased from it the chemical goods worth Rs. 1,64,277 and Rs. 40,000. Alleged statement of accounts and the bill/invoices are not produced. The petitioner also not produced on record the cheques which were alleged to have been given by the respondent company and dishonoured. Thus, on record of the petition, the petitioner has not produced any proof of his alleged debt towards the respondent company. 4. Document Ex.1 is a notice which is alleged to have been sent by the petitioner to the respondent company through his Advocate, demanding this amount. The notice is dated 9-9-2002. There is another notice on record as Ex.2 sent by the petitioner to the respondent company through Advocate, which is dated 17-10-2002. The petitioner sent last notice through the Advocate to the respondent company on 3-5-2003 which is Ex.5 on the record of the company petition. 5. The notice is dated 9-9-2002. There is another notice on record as Ex.2 sent by the petitioner to the respondent company through Advocate, which is dated 17-10-2002. The petitioner sent last notice through the Advocate to the respondent company on 3-5-2003 which is Ex.5 on the record of the company petition. 5. So far as to these notices are concerned, same cannot be taken a proof in support of claim that the petitioner sold chemical goods to the respondent-company worth of Rs. 1,64,227 and Rs. 40,000. Otherwise also the petitioner has not produced any proof of receipt of the notices Ex.1 and Ex.5. In the notices Ex.1 and Ex.5 it is not stated that in case the amount demanded thereunder is not paid, the petitioner will file winding up petition against the respondent company. Ex.2 is the notice dated 17-10-2002 and the petitioner has not produced any material to prove the receipt thereof by the respondent company. In this notice certainly it is mentioned that in case the amount is not paid the winding up petition may be filed. Ex.4 is the Courier Receipt and it is also not signed by the addressee nor does it disclose what was the document sent through the courier. Not only this there is nothing on record to establish that document Ex.2 was sent through this courier by the petitioner. It is also not there in the document Ex.4 that it has been sent to the respondent company. From these three notices one thing is clear that the petitioner has made demand for payment of the alleged due amount. 6. Even if it is assumed that the notices were sent demanding thereby the alleged dues and the respondent company has not made the payment thereof still, in the facts of this case, it is not bona fide winding up petition. It is nothing but an abuse of the process of the court. In each and every case, for inability of the company to pay its debts, winding up petition cannot be admitted as a rule or right. It is nothing but an abuse of the process of the court. In each and every case, for inability of the company to pay its debts, winding up petition cannot be admitted as a rule or right. The goods have been sold by the petitioner to the respondent company and in case the petitioner has not received the payment thereof from the respondent company, the remedy is available to the petitioner of filing a civil suit but this tactic has been adopted of filing winding up petition to put a pressure or to threat the respondent company to get the money recovered. This cannot be permitted by the Court. Unscrupulous litigants cannot be permitted making it a source for recovery of the amount for which adequate remedy of suit is there. In the suit the court fees is to be paid. That they do not want to pay. From the facts of this case it is clearly borne out, leaving apart the fact that the petitioner has not produced any proof of the alleged dues towards the respondent company of the petitioner, that the petitioner has filed this winding up petition to create a pressure or to threat the respondent company to recover this amount. This court will not permit unscrupulous litigants to make the company court a court for recovery of the dues under the garb of the winding up petitions. 7. One of the requisite condition for entertainment of winding up petition is that on the date of filing of the petition the suit for recovery of the alleged debt against the company is within limitation. The petitioner has deliberately and purposely concealed from the court the document, the statement of accounts and bills/invoices have where these documents arc submitted, it would have been exposed that the suit for recovery of the alleged amount of the costs of chemical goods due to the respondent company, has already become barred by limitation. For non-filing of these basic documents of the claim i.e., bill/invoices and the statements of accounts, an adverse inference reasonably can be drawn that the same have purposely and deliberately withheld as the suit for recovery of the alleged due amount against respondent company already become barred by limitation. 8. For non-filing of these basic documents of the claim i.e., bill/invoices and the statements of accounts, an adverse inference reasonably can be drawn that the same have purposely and deliberately withheld as the suit for recovery of the alleged due amount against respondent company already become barred by limitation. 8. For the prayer made in the petition, it is clear that this winding up petition has been filed to circumvent the remedy of filing of the suit for recovery of alleged dues against the respondent company. No direction can be issued at the time of winding up of the company to the Official Liquidator to make the payment of the amount allegedly due to the respondent company. After winding up of the company the creditors have to lodge their claim before the Official Liquidator. The petitioner, as it borns out from this petition itself, is in the category of unsecured creditors and it is highly doubtful whether it will be able to get single pie of its money allegedly due to the respondent company. Thus, this petition is nothing but only an attempt on the part of the petitioner to recover this amount at the threat of winding up of the respondent company. Though the petitioner has come up with the case that the respondent company has given the cheques and the same were bounced but those cheques have not been produced on the record, as said earlier nor it is the case of the petitioner that for dishonour of the cheques, any action has been taken against the respondent company. By these facts, it is difficult to accept it to be a fit case so as to entertain this winding up petition. 9. The matter yet can be examined from another aspect. For the transaction of this nature where payment of the cost of the goods supplied to the respondent company has not been made, the petitioner has a remedy of filing of the summary suit. From the provisions of the order 37 of the C.P.C. it is clear that the petitioner has more effective remedy but purposely and deliberately that remedy has not been availed of as in the suit court fees is to be paid. 10. As a result of the aforesaid discussion this winding up petition fails and the same is dismissed in limine. *******