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2005 DIGILAW 1412 (RAJ)

Goyal Traders v. Shakambhari Ceramics Ltd.

2005-05-11

S.K.KESHOTE

body2005
JUDGMENT 1. - Heard learned Counsel for the petitioner and perused the entire record of the petition. 2. This is a petition under Sections 433(e) and (f), 434 and 439 of the Companies Act, 1956; therein the petitioner has prayed for winding up of respondent M/s. Shakambhari Ceramics Limited, having its registered office at F-7/11, Vigyan Nagar, Industrial Area, Shahjanpur, District Alwar, (for short, 'the respondent company'). Further the petitioner has prayed for appointment of the Official Liquidator as Provisional Liquidator of the respondent-company. 3. Briefly stated the facts of the case are that the petitioner is a registered proprietary firm having its registered office at 2nd Floor, Budhraj Chambers, C.G. Road, Ahmedabad (Gujarat). The respondent-company is incorporated in accordance with the provisions of the Companies Act, 1956 and having its registered office at the aforesaid given address. 4. The respondent-company, as per the averments made by the petitioner, is engaged in the business of production and manufacturing of crockery, potteries, tiles and sanitary board insulators. 5. The respondent-company, it is alleged, has purchased carbon steel (SS) vide invoice No. 204, dated 16-8-1998, of a sum of Rs. 1,66,600 from the petitioner. It is to be noted here that Annexure-2 is only a letter. To this letter, the copy of the Bill and R/R are stated to have been enclosed but those documents have not been filed on the record. 6. Referring to the document Annexure-3, which is a letter written by the Director of the respondent-company to the petitioner, it is stated that the respondent-company has admitted its liability to pay the amount of bill raised against it for the material supplied to it by the petitioner. The respondent-company through its letter, dated 5-5-1999, replied the letter of the petitioner. The petitioner submitted that when the respondent-company made no payment, it repeatedly requested it to make the payment of the dues and the reference has been made to its letters, dated 28-7-2000, 26-3-2001 and 8-4-2002. The petitioner has placed these letters on the record as Annexure Nos. 6 to 8 to the petition.The petitioner urged that the respondent-company replied these letters under its letters dated 15-12-1999, 3-8-2000, 31-3-2001 and 12-4-2002, and admitted its liability to make the payment of the amount of the bills. The petitioner has placed these letters on the record as Annexure Nos. 6 to 8 to the petition.The petitioner urged that the respondent-company replied these letters under its letters dated 15-12-1999, 3-8-2000, 31-3-2001 and 12-4-2002, and admitted its liability to make the payment of the amount of the bills. The petitioner made reference of its meeting with the respondent-company and therein the respondent-company alleged to have assured the petitioner that the payments will be made as early as possible. The reference has been made to the document Annexure-9. 7. The petitioner sent a notice through Advocate, which is stated to be a statutory notice, dated 17-8-2004, to the respondent-company and called upon it to make the payment of Rs. 2,97,797.50p., together with interest thereon at the rate of 15 per cent per annum, from the date of delivery of goods, within 21 days of receipt of such notice, failing which the respondent-company will be deemed unable to pay their debts and the petitioner will file a winding up petition. 8. The petitioner's grievance is that the respondent-company has not acknowledged the notice what to say to make the payment of the outstanding amount of the bill of the material purchased by it from the petitioner, thus this winding up petition has been filed on 13-4-2005. 9. From the facts stated by the petitioner in the petition and the documents enclosed thereto, the respondent-company has not disputed its liability to make the payment of the amount of bills raised against him of costs of material supplied to it by the petitioner. These facts come on the record speak that the respondent-company is not dishonest. The petitioner granted indulgence to the respondent-company from time to time. It has not filed civil suit for recovery of the amount due, which was adequate, efficacious and prompt remedy available to him. It went on writing letters and having meetings with the respondent-company but has not filed the civil suit. 10. The bill, as per petitioner's own case, is dated 16-8-1998.After more than six years thereof this winding up petition has been filed. The admission last made by the respondent-company of its liability to make the payment of the amount of the bill, has been made by its letter, dated 12-4-2002. The period to file the suit for recovery of the amount of the bill was three years. The admission last made by the respondent-company of its liability to make the payment of the amount of the bill, has been made by its letter, dated 12-4-2002. The period to file the suit for recovery of the amount of the bill was three years. The bill is dated 16-8-1998 and three years expired on 15-8-2001. The debt allegedly acknowledged from time to time and last acknowledgement of the debt has been made, as said earlier, under the letter, dated 12-4-2002 (Annexure-12). Even if the period of limitation for filing the civil suit is taken from this date then also it has expired on 11-4-2005 whereas this petition has been filed on 13-4-2005. Thus, the right to recover the amount of the bill may be barred by limitation. That apart the remedy availed by the petitioner for winding up of the respondent-company is in the discretion of the Court. The Court may or may not, in a given facts of a particular case, order for winding up of a company sought to be wound up. 11. The facts that the respondent-company never denied its liability, the petitioner went on granting time to it, the right to recover of the amount of the bill would have become barred by limitation on the date of filing of petition and that the petition has been filed after more than six years of the issuance of the bill allegedly due and after more than three years of the last acknowledgement made of the debt of the respondent-company, it is not the fit case where the respondent-company is ordered to be wound up, more so when it is stated to be a running concern. 12. As a result of the aforesaid discussion this winding-up petition fails and the same is dismissed. *******