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2011 DIGILAW 679 (GUJ)

N. Desai Papers P. Ltd. v. Computer Skill Ltd.

2011-09-19

K.M.THAKER

body2011
JUDGMENT : K.M. Thaker, J. The petitioner has taken out the present petition seeking below mentioned reliefs : (a) the company namely Computer Skill Limited be wound up by and under the orders and directions of this Hon'ble court under the provisions of the Companies Act, 1956. (b) the official liquidator attached to the High Court Gujarat, Ahmeda bad be appointed as liquidator of the company with all powers under the Companies Act, 1956, including the power to take charge of the assets, affairs, books of account, documents, vouchers, bills, etc., of the company. (c) pending the hearing and final disposal of this petition, the official liquidator attached to the High Court, Gujarat, Ahmedabad or some other fit and proper person be appointed as the provisional liquidator of the company and its properties, assets, incomes and also business of the company with all powers under the Companies Act, 1956, including the power to take charge of the assets, records, documents, papers, vouchers, bills, etc., of the company. 2. The petitioner-company also prayed that the respondent be restrained from transferring or alienating properties in any manner. The petition is taken out on the ground that the petitioner supplied various goods/materials to the respondent and had raised invoices in respect of goods supplied. It is also claimed that from time to time goods were supplied by the petitioner and the invoices raised in respect of such supply have remained unpaid though part payment out of the total amount covered under invoices is received. It is claimed that the invoice in a sum of Rs. 11,49,787 were raised. The respondent made payment to the tune of Rs. 2,32,753 and thereafter stopped making any payment and the other invoice remained unpaid. It is also claimed that when, despite repeated request any response was not received and any payment was also not received, the petitioner was constrained to issue, deliver and serve the demand by way of statutory notice under section 433 read with section 434 of the Act demanding payment. It is claimed that since statutory notice was also not replied the petitioner is constrained to prefer the present petition. In this background the petitioner has contended that the respondent has not only neglected to make payment but has also lost the ability to pay. It is claimed that since statutory notice was also not replied the petitioner is constrained to prefer the present petition. In this background the petitioner has contended that the respondent has not only neglected to make payment but has also lost the ability to pay. It is also claimed that the respondent-company has no intention or ability to make payment and therefore, the petition may be admitted and further appropriate order including restraint order may be passed against the respondent. 3. Upon hearing the learned advocate for the petitioner under order dated August 2, 2010 the court issued notice. The respondent entered appearance in response to the notice though the statutory notice was not replied the respondent filed affidavit in reply opposing the petition. 4. In the affidavit the respondent opposed the petition and now the respondent has sought to contend that it had not placed order for supply of the material in respect of which invoices are alleged to have been raised and demand for payment is being made. It is apparent from the record that when the bills were raised, such dispute was not raised but it is raised now in the affidavit. 5. It is also sought to be now claimed that the petitioner has not mentioned details as regards the supply or as regards the goods or as regards the order under which the supplies are allegedly made. It is claimed that payment of the said invoices on the question of payment in respect of invoices does not arise. The respondent has also claimed that it is a going concern and there is no justification for the request for order of winding up against the respondent-company. The respondent has claimed that there are disputed issues and questions of fact and that therefore the petition for winding up of the company may not be entertained more particularly when the respondent-company is a going concern. 6. Heard Ms. Parikh, the learned advocate for the petitioner and Ms. Sheth, the learned advocate for the respondent. 7. Before proceeding further it is appropriate and necessary to note at the outset on earlier occasion the proceeding of this petition have been adjourned at the request of learned advocate for the respondent on the ground that the respondent intend to settle the matter. Sheth, the learned advocate for the respondent. 7. Before proceeding further it is appropriate and necessary to note at the outset on earlier occasion the proceeding of this petition have been adjourned at the request of learned advocate for the respondent on the ground that the respondent intend to settle the matter. On various occasions the petition was adjourned on the ground that though principally the parties have arrived at the settlement however, fine tuning to the terms and conditions of the respondent to be settled between the parties and therefore, time was requested. Ultimately on August 24, 2011, it was submitted by learned advocate for the respondent that the parties have already arrived at the settlement and duly signed consent terms will be placed on record on August 30, 2011. On such submission, proceedings of the petition was adjourned to August 30, 2011. Subsequently on August 30 and September 8, again request for adjournment for placing the consent terms on record was made and was granted. 8. Obviously if there was no claim for considering and if the claim was absolutely baseless unjustified and was made in connection with the goods/material which was never intented and was not supplied, any question of negotiation and/or settlement much less tendering consent terms on record would never arise. 9. In this background today learned advocate for the respondent submitted that the respondent-company is not inclined to sign any consent terms and submitted that after hearing the submissions to be made by the respondent appropriate order may be passed therefore, I have heard learned advocate for the petitioner and the respondent on the merits. 10. Ms. Parikh, the learned advocate for the petitioner has taken the court through the averments made in the petition I have taken the same into account. She referred to the copies of invoices raised by the petitioner in respect of goods/material supplied by it summary of which along with copies of bills is placed at annexure A. Learned advocate for the petitioner also made reference of the document at annexure B which are delivery notes. She submitted that the petitioner-company has supplied the goods/material and at the relevant time, i.e., the delivery was made the respondent had received and accepted the goods without raising any dispute as regards quantity and the quality of goods supplied by the petitioner. She submitted that the petitioner-company has supplied the goods/material and at the relevant time, i.e., the delivery was made the respondent had received and accepted the goods without raising any dispute as regards quantity and the quality of goods supplied by the petitioner. According to the learned advocate for the petitioner, the said aspect is evident from the delivery notes which are duly counter signed by the representative of the respondent. 11. Learned advocate for the petitioner submitted that with passage of time as per requirement of the respondent the petitioner-company had also supplied Form C in compliance with the provisions of the Gujarat Sales tax Act, 1969 and Gujarat Value Added tax Act, 2003. She made reference and relied upon the copy of Form C supplied by the petitioner to the respondent and on the strength of the document she submitted that the said Form C are also evidence of the fact that the petitioner has supplied the goods/material to the respondent. 12. She submitted that until the petition came to be filed, the respondent had never raised any dispute with regard to delivery and/or quantity and quality of the goods. Not even in response to the various reminders forwarded by the petitioner demanding payment the respondent had raised any dispute with regard to goods. She submitted that ultimately when the respondent did not respond to the request for payment towards invoices, ultimately the petitioner was constrained to issue statutory notice raised demand against the respondent-company by way of statutory notice dated March 31, 2010. It is asserted that notice has been duly served and delivered to the respondent at its registered office. 13. On the strength of such submission and the document annexed to the petition including copy of the statutory notice, learned advocate for the petitioner submitted that the respondent-company has neglected to make payment. She also submitted that the respondent does not have the ability to make payment and that therefore, the petition deserves to be admitted and the petitioner-company is entitled to pray for order of winding up against the respondent-company. 14. Ms. Sheth, the learned advocate for the respondent opposed the petition and submitted that claim against the respondent is baseless. She also submitted that the respondent does not have the ability to make payment and that therefore, the petition deserves to be admitted and the petitioner-company is entitled to pray for order of winding up against the respondent-company. 14. Ms. Sheth, the learned advocate for the respondent opposed the petition and submitted that claim against the respondent is baseless. She submitted that there is no material on record to show that the respondent issued or forwarded any purchase order for any goods/materials particularly goods allegedly supplied by the petitioner in respect of the claim which is made. She reiterated the below mentioned submissions and factual details mentioned by the respondent-company in paragraph 5 of its reply affidavit : "5. In reply to averments made in paragraphs 1 to 8 of the petition it is submitted that the company does the business with the petitioner since few years and always paid the amount as and when the order has been placed and purchased the material from the petitioner. However with respect to the material claimed to be supplied to their company amounting to Rs. 11,49,787 it is denied that the company had ever placed orders much less then oral orders as a result the petitioner had supplied the said material to the company. As such it is the practice of the company to place written orders. The petitioner has very conveniently chosen not to give details about placing of the oral order by the company nor given any details about who has placed the order and on which date and for which material. The petitioner has not even bothered to give details on which date the supplies were made except the bear words. Be that may be, so the company had not placed any oral order. The question therefore supplying material as well raising invoices do not arise at all. It is denied that the company made part payment towards the material supplied of Rs. 11,49,787." 15. In the light of the said submission, learned advocate for the respondent submitted that the respondent-company had never asked the petitioner-company to supply goods/material and therefore, the petitioner is not entitled to claim the payment. She also submitted that the respondent-company is a going concern and the petitioner is not justified in alleging that the respondent-company has lost the capacity to discharge its financial obligation. 16. She also submitted that the respondent-company is a going concern and the petitioner is not justified in alleging that the respondent-company has lost the capacity to discharge its financial obligation. 16. It is not in dispute that the respondent-company has not given any response to the statutory notice. 17. It is also not in dispute that any material has not been placed by the respondent to demonstrate that with regard to the demand raised by the petitioner vide its communication which are at annexure F, any dispute was contemporaneously raised by the respondent and the details maintained by the petitioner were contemporaneously denied or disputed. 18. It is not in dispute that the details mentioned by the petitioner-company with regard to delivery notes (paragraph 8 of the petition) and/or the documents purporting to be the delivery notes at annexure B pages 15 and 16 were also not contemporaneously disputed by the respondent. 19. The petitioner has specifically averred in paragraph 8 of its petition that : ."The petitioner states that the material supplied to the company were found to the satisfaction of the company and the company never raised any dispute for the supplies made to it pertaining to the price, quality and/or quantity thereof, the respondent-company has acknowledged the supply of all the materials by confirming the delivery notes. Copies of the delivery notes duly acknowledged by the respondent company are annexed herewith as annexure B." 20. As noted above in the reply affidavit the respondent-company has stated that the petitioner has conveniently not given details about placing of the oral order by the respondent-company and has not given details about the orders and on which dates the orders were passed and/or for which material orders were placed. The respondent has also stated that the petitioner has not bothered to give details on which date the supply were made. 21. However, it is pertinent to note that in paragraph 5 of the reply affidavit which pertain to paragraphs 1 to 8 of the petition there is no denial about the petitioner's assertion in respect of delivery notes. 22. The respondent has also stated that the petitioner has not bothered to give details on which date the supply were made. 21. However, it is pertinent to note that in paragraph 5 of the reply affidavit which pertain to paragraphs 1 to 8 of the petition there is no denial about the petitioner's assertion in respect of delivery notes. 22. On perusal of the document at annexure B pages 15 to 17 it transpires that details of the description of the goods/materials supplied by the petitioner to the consignee are mentioned in the name of the respondent-company is shown as consignor and the said delivery notes are said to have been signed in acknowledgment of the receipt-delivery of the goods by the representative of the respondent-company. 23. The said document and/or assertion by the petitioner in the petition have not been disputed or denied by the respondent-company much less at the relevant time or in response to the subsequent intimation (annexure F) or even at the stage of statutory notice. 24. As noted above in the reply affidavit there is no specific denial with regard to the delivery notes and the said documents are not denied or disputed by the respondent. 25. Under the circumstances at this stage there is no material, hence there is no justification to take into account the said document on which the reliance is placed by the petitioner and which have remained uncontroverted and undisputed at the respondent's end. 26. The document at annexure E, i.e., copy of the Form C supplied by the petitioner supports the petitioner's contention. 27. Even the issuance of supply of Form C by the petitioner to the respondent is not disputed and denied by the respondent-company. Furthermore, the respondent has failed to show any material that contemporaneously and in protest, and thereby any dispute, was raised. 28. In this background it emerges that the defence sought to be urged and advanced by the respondent in the reply affidavit is an afterthought and is not bona fide. 29. Furthermore, the respondent has failed to show any material that contemporaneously and in protest, and thereby any dispute, was raised. 28. In this background it emerges that the defence sought to be urged and advanced by the respondent in the reply affidavit is an afterthought and is not bona fide. 29. The submission and averment made by the respondent in the reply affidavit do not inspire any confidence and on considering it appears to be merely a afterthought raised with the idea of opposing the petition and to supply lame and feeble support to the submission that there are disputes and differences between the parties which give rise to disputed question and that therefore, the petition may not be entertained. 30. When it appears to the court that the defence is not bona fide and when it also appears to the court that the petitioner has sustainable claim against the respondent then the court would admit the petition as the petitioner can ask for an order of admission ex debitio justitio. 31. In the present case after due consideration of the document relied on by the petitioner and after considering the reply affidavit by the respondent and other connected factual aspect for which reference has been made hereinabove, I am satisfied that the explanation tendered by the respondent is an afterthought and not bona fide. Therefore, the following order is passed. 32. Admit. 33. So far as the question of giving an opportunity to the respondent to make payment and/or to deposit the amount is concerned as noted hereinabove earlier several opportunities were granted by adjourning the petition and at one stage it was mentioned by the respondent that the parties have arrived at the settlement and the consent terms were also drawn which were only to be signed and presented on the record. 34. However now the respondent has referred to contest the petition on merits. Under the circumstances as such I do not see any reason or justification to defer the publication of advertisement. 35. Learned advocate for the petitioner has also expressed serious apprehension that if restraint order is not granted then the asset may be transferred/lost. 36. 34. However now the respondent has referred to contest the petition on merits. Under the circumstances as such I do not see any reason or justification to defer the publication of advertisement. 35. Learned advocate for the petitioner has also expressed serious apprehension that if restraint order is not granted then the asset may be transferred/lost. 36. Having regard to the aforesaid fact that on earlier occasion the petition was adjourned from time to time to enable the respondent to arrive at a settlement at the request of the respondent on a couple of occasions, the hearing was adjourned only with a view to accommodating the respondent to sign the consent terms and having regard to the fact that even as of now the respondent-company has not shown any inclination or readiness to offer payment even in instalment or to deposit the amount it appears that no fruitful purpose by deferring the publication of advertisement will not be served. Hence, the petitioner is directed to publish the advertisement in Gujarati daily newspaper-Divya Bhaskar and English newspaper-The New Indian Express having publication in the State of Gujarat. 37. The publication in the Government Gazette is dispensed with. 38. The petition will be taken up for hearing on November 28, 2011. The petitioner shall mention the date of hearing of petition in the advertisement. The official liquidator attached to the court is appointed as the provisional liquidator who will draw panchnama and prepare inventory and take charge and custody of the asset and liability of the company. In the meanwhile the respondent is restrained from alienating the asset and properties of the respondent-company in any manner whatsoever.