Research › Search › Judgment

Calcutta High Court · body

2012 DIGILAW 551 (CAL)

In Re: Tradecom Infrastructure Pvt. Ltd. v. .

2012-06-25

ASHOKE KUMAR DASADHIKARI

body2012
JUDGMENT Ashoke Kumar Dasadhikari, J. 1. This winding up application has come up for final hearing after admission. On 23rd March, 2011 the application for winding up was admitted upon proper consideration of the matter. In the order dated 23rd March, 2011 it was recorded that the Company did not give reply to the statutory notice. At the admission stage in spite of service of notices Company did not appear nor filed any affidavit against the winding up petition and order for paper publication was made. After paper publication when the matter appeared before this Court, the Company made a prayer for recalling the order dated 23rd March, 2011 and also wanted to use affidavit. Directions for affidavits were given and after exchange of all affidavits the matter was finally heard with the application for recalling. After careful consideration of the matter and considering the conduct of Company I do not see any reasonable ground to recall the order dated 23rd March, 2011. Mr. Basak appearing for the petitioning creditor submitted that this petition was moved upon notice, but nobody appeared for the Company; no opposition was filed; the company petition was admitted and publication was made as per the order passed by this Court. After the paper publication was made, the Company appeared through their counsel. However, interim orders were passed directing Reliance Telecom to deposit the amount due and payable to the Company with the Registrar of this Court. Pursuant to such direction. Reliance authorities deposited the amount with the Registrar, Original Side of this Court and that amount is lying with the Registrar, Original Side. It was also submitted by him that the defect liability period for nine Towers expired in August, 2007 and, therefore, the petitioner is entitled to get an aggregate sum of Rs. 74,77,411.64 P. as raised in the invoice. They are also entitled to interest at the rate of 18% per annum on and from the respective dates of the bills until realisation and the company is liable to pay the same. 2. Mr. Basak submitted that the agreed bill amount of Rs. 74,77,411,64 P. less 25% as commission receivable by the company comes to Rs. 56.08,058.73 P. and interest at the rate of 18% per an num on and from the respective dates of the bills till 30th June 2010 comes to Rs. 30,25,351.33, thus the aggregate amount of Rs. 2. Mr. Basak submitted that the agreed bill amount of Rs. 74,77,411,64 P. less 25% as commission receivable by the company comes to Rs. 56.08,058.73 P. and interest at the rate of 18% per an num on and from the respective dates of the bills till 30th June 2010 comes to Rs. 30,25,351.33, thus the aggregate amount of Rs. 86,37,84.410/- is due and payable from the company. Mr. Basak also submitted that they are also entitled to get interest at the rate of 24% per annum on and from 1st July, 2010 till the date of payment. 3. It is submitted that the Company raised the bill against Reliance Telecom Ltd. and they have already realised the entire amount from Reliance Telecom and after deducting 25% as commission for the Company, the rest amount was to be paid to the petitioner. 4. Mr. Basak also submitted that the Company failed to give reply to the statutory notice. This Court on earlier occasion decided the amount to be paid by the company. There is no scope for changing the amount as determined. 5. It is also submitted that unless the debt is bona fide disputed and there is some reasonable ground, the application for winding up should be allowed and, in the instant case, none of those two is available in favour of the petition. Mr. Basak submitted that there is no bona fide defence against the claim of the petitioner. 6. It is further submitted that although in their opposition the Company has disclosed that they had made some payments but those were not paid to the partnership firm. Some payments are shown to have been made in favour of one of the partners but those are not payments in favour of petitioner and therefore the Company cannot claim any deduction of those amounts, if at all paid. He submitted that the amount as decided at the time of admission has reached its finality. Subsequently, even if it is disputed by the company, this Court should not entertain this. 7. Mr. Basak cited an unreported decision of the Division bench of this Court delivered on February 10, 1999 in the case of Khaitan Paper Mills Ltd. vs. Wears and Fabrics (SA) Ltd. to contend that this Hon'ble Court has held that a practice has developed by which a company is invariably given notice of winding up petition. 7. Mr. Basak cited an unreported decision of the Division bench of this Court delivered on February 10, 1999 in the case of Khaitan Paper Mills Ltd. vs. Wears and Fabrics (SA) Ltd. to contend that this Hon'ble Court has held that a practice has developed by which a company is invariably given notice of winding up petition. An opportunity is given to the company to file affidavit in answer to the winding up petition. The petitioner is also given liberty to file an affidavit in reply. All these take place before the admission stage. There is a full scale hearing. After the Court comes to the conclusion that the grounds made out by the petitioner falls within the grounds as mentioned in section 433, the Court then directs its admission. If the petition is admitted upon the inability of the company to pay its debt, the Court normally gives an opportunity to the company to pay off the debt of the petitioning creditor as determined by the Court and directs advertisements only in default of such payment. After the advertisements are published, matter becomes a representative one and all creditors, contributories and other persons may either oppose or support the winding up when the matter is taken up for hearing under section 433. Even at this stage, the Court is not bound to wind up the company, section 433(1) gives the guidelines. As the Court may exercise any of its alternative powers, the Court forming a prima facie view at the time of admission must mean a prima facie view as to whether the Company should be wound up under section 433. It cannot be said, having regard to the practice of this Court that the Court forms a prima facie view as to the ground on which the winding up petition is admitted. Thus, if a petitioning creditor files a winding up petition on the ground that the company is unable to pay its debt and the company opposes the application by filing affidavit seeking to establish before the Court that the debt is a disputed one and the Court comes to a conclusion that the company dispute is not a bona fide one, it must be held that the finding as to he existence of the debt by the Court is a final one. The Court has to take a clear view of the matter over and above the actual inability of the company to pay off that particular debt on the basis of which the company petition may have been admitted. 8. Ultimately, it was held that even if there is a finding on the inability of the company to pay its debt under section 433, the company, creditors and/or contributories may bring facts to the notice of the Court to persuade the Court not to pass an order of winding up under section 433. This should not be taken as a licence to the company to re-open the issue determined by the finding of the Company Court on affidavits at the time of admission of the petition. Mr. Basak submitted that the amount already decided should not be interfered although factum of some payments were disclosed by the company in its opposition filed after the winding up notice was published. 9. Learned counsel for the company submits that the notice was received by the employee of the Company but he did not give information to his client. Therefore, proper steps could not be taken at the time of hearing of the winding up petition before admission. He submitted that in their absence the application for winding up was admitted and a publication was made. Thereafter orders were passed attaching the amount due and payable by Reliance to the company. The said amount was deposited with the Registrar, O.S. He submitted that some payments were made in favour of one Bibhas Biswas on behalf of the petitioner sometimes by cash and sometimes by cheque. It was submitted that a amount of Rs. 19,64,850/- has been paid to the petitioner which, according to the company, is in excess to the work, done by the petitioner. Learned Counsel submitted that the petitioner committed breach of the agreement and their workmanship was poor and not as per desired level and that has caused damage to the building wherein towers was to be erected by the petitioner and as a result whereof the company terminated the contract of the petitioner. It was submitted that the petitioner did not carry out or complete any work referred in the purported completion certificate. It was denied that the company is indebted to the petitioner for the principal sum of Rs. It was submitted that the petitioner did not carry out or complete any work referred in the purported completion certificate. It was denied that the company is indebted to the petitioner for the principal sum of Rs. 74,77,411.64 or interest as claimed @ 18% interest or any other rate. It was also submitted that the completion certificates annexed were issued prior to issuance of the work order which according to them is absurd. The company never entrusted the petitioner to carry out the work prior to issuance of the work order. Learned Counsel further submitted that the claim of the petitioner is highly disputed. However, he submitted that from time to time the petitioner has received an aggregate sum of Rs. 16,30,926/- and the company also made payment of Rs. 3,34,074/- to the suppliers of the petitioner at the instruction of the petitioner. It was submitted by the learned Counsel for the company that the company terminated the work order on 17th December, 2007 by a notice of termination. He submitted that the company has bona fide defence against the claim and the claim is bona fide disputed. There are triable issues. He submitted when there is doubt about the claim this Court should not interfere with the same. He cited the following decisions in support of his contentions: 1) AIR 1977 SC 577 , para 8 (Sm. Padmal Uppal vs. State of Punjab & Ors.); 2) (1971) 3 SCC 632 , paras 22 and 23 (M/s. Madhusudan Bardhan Das & Company vs. Madhu Wollen Industries Pvt. Ltd.); 3) (2005) 7 SCC 42 (Medi Equip Systems (P) Ltd. vs. Proxima Medical System GMBH); 4) AIR 1961 SC 365 (Azimunissha & Ors. vs. Deputy Custodian, Evacuee Properties & Ors.); (2010) 10 SCC 553 (Iba Health (India) Pvt. Ltd. vs. Info Drive Systems SDN, BHD); 103 CC 108. He submitted that the earlier order should be recalled. 10. Heard the learned Counsel appearing for the parties and it appears that the petitioning creditor was approached by the company for construction and erection of nine towers at various sites in Jharkhand for Reliance Telecom Limited. The company got the order from Reliance and thereafter placed orders with the petitioning creditor for erection of nine towers at various sites in Jharkhand on their behalf. It was a back to back contract. The company got the order from Reliance and thereafter placed orders with the petitioning creditor for erection of nine towers at various sites in Jharkhand on their behalf. It was a back to back contract. It was assured that on completion of the project duly satisfied by the Site Engineer, 90% payment shall be made on back to back submission of bills on the Reliance Telecom Limited after deduction of 25% commission on the billed amount, etc. It appears from the certificates issued by the engineers that nine towers were raised its Bills which were paid also but the petitioning creditor was not paid dues after deductions as agreed by the company. In spite of having received payments from Reliance Telecom Limited, the company did not pay the amount to the petitioning creditor. A cheque for Rs. 10 Lac was issued on August 25, 2007. At the time of admission it was held that the petitioner is entitled to a claim of Rs. 56,08,058.73 after deduction of 20% commission and adding interest upto to 30th July, 2003 calculated to the tune of Rs. 30,25,351.32 and the total unpaid due is Rs. 86,36,410.05. It was held by this Court at the time of admission that petitioning creditor is entitled to claim the aforesaid sum together with interest thereon at the rate of 18% per annum simple interest from August, 2010 till date of payment. It is matter of records that in spite of having separate opportunity the Company did not contest and oppose the claim, rather they have accepted the claim. Further, in view of judgment of the Hon'ble Division Bench rendered in case of Khaitan Paper Mills Ltd. there is no scope to re-determine the claim amount which has finally been determined at the time of admission. 11. Further it also appears from those documents that one of the partners was paid some amount of money. Although the company is required to pay the petitioning creditor, but nothing is found from the records that those payments were made to the petitioning creditor. It also appears that the defect liability period for the said Towers expired on 9th August, 2007 and the petitioning creditor is entitled to get the aforementioned sum. Although the company is required to pay the petitioning creditor, but nothing is found from the records that those payments were made to the petitioning creditor. It also appears that the defect liability period for the said Towers expired on 9th August, 2007 and the petitioning creditor is entitled to get the aforementioned sum. Although it is denied by the Company in its opposition that because of unsatisfactory works the work order was terminated on 7th December, 2010, but it appears from records that subsequent to the alleged termination, payment was made and the dates of the cheques as disclosed are 10th December, 2007, 10th January, 2009 and 19th January, 2008. Thus it appears that the claim and contention of the Company is without any contemporaneous documents and it has got no substance. The company failed to produce any document wherein the petitioning creditor directed to make any payment in favour of their suppliers. Thus it appears to me that there is no bona fide dispute as regards the debt. 12. Therefore, I hold that the Company is unable to pay its debt. On the basis of the findings arrived at by this Court, let this application be allowed. There shall be orders in terms of prayers (a), (b) and (c) of the application. Official Liquidator is directed to take steps accordingly. The petitioning creditor is directed to withdraw the deposited amount lying with the Registrar O.S. Registrar. O.S. is directed to pay the money to the petitioning creditor. In case the Registrar is required to get premature encashment of any fixed deposit made by him, he is directed to do so. A last opportunity is given to the Company to pay the balance amount of money to the petitioning creditor by 12 monthly equal instalments. First of such instalments is to be paid by the company by 30th July 2012 and the subsequent instalments thereafter on the same date of each succeeding month regularly. In case of default of payment of any such instalments or the last instalment, the Official Liquidator is directed to take steps in terms of the order. In case instalments are paid as per direction, the order for winding up will remain permanently stayed. Photostat certified copy of this judgment and order be made available to the parties upon compliance of usual formalities.