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2013 DIGILAW 395 (GUJ)

Surya Exim Ltd v. Saral Plastics P. Ltd.

2013-07-10

K.M.THAKER

body2013
ORDER : K.M. Thaker, J. Heard Mr. Shah, learned advocate for the petitioner. 2. In present petition, the petitioner has prayed, inter alia, that: "16(a) that the Respondent Company, i.e. Saral Plastics Private Limited be ordered to be wound up by an order of this Hon'ble Court; (b) that the Official Liquidator, High Court, Gujarat be appointed as liquidator of the Respondent Company with all powers under the Companies Act, 1956 including the power to take possession of all the assets, books of account, stock in trade, cash on hand, moveable properties including furniture and fixtures as well as all immoveable properties;" 3. Learned advocate for the petitioner submitted that the petitioner supplied material to the respondent company. The goods have been received by the respondent company. He also submitted that until statutory notice came to be issued by the petitioner company, any dispute with regard to quality of the goods was not raised by the respondent company. He submitted that actually, the respondent company has paid part of the amount of the invoices raised by the petitioner company, however, subsequently, the respondent company stopped making payments. He also submitted that after the respondent company stopped making payments of petitioner's invoices, the petitioner repeatedly demanded outstanding amount from the respondent company, however, did not make the payment. Consequently, the petitioner was constrained to serve statutory notice dated 19.12.2011, however, the said statutory notice has not earned any reply nor any payment is received from the respondent company. Therefore, the petitioner claims that the respondent company has lost its substratum and is unable to discharge its debt and therefore, the petitioner has taken out present petition under Sections 433 and 434 of the Companies Act, 1956 inasmuch as the default of the respondent company falls within the purview of the said provisions. 4. The remedy provided under the Companies Act, 1956, particularly Sections 433 and 434 of the Act, is discretionary relief. However, it is also clear that the remedy is not an alternative remedy for enforcing recovery of money for which suit proceedings. The remedy of winding up ought not to be and cannot be allowed to be used for enforcing recovery of money. 5. Moreover, where disputed questions/issues are involved and/or where the opponent has bonafide defence, the Court ordinarily does not accept request for order of winding up. 6. The remedy of winding up ought not to be and cannot be allowed to be used for enforcing recovery of money. 5. Moreover, where disputed questions/issues are involved and/or where the opponent has bonafide defence, the Court ordinarily does not accept request for order of winding up. 6. Particularly in present case, it has prima facie emerged that the claim with which the petitioner has come forward, seems to be time barred. This becomes clear from the details of unpaid invoices mentioned by the petitioner in the memo of petition, which demonstrate thus: INVOICE NO. INV. DATE INV.AMT OUTSTANDING AMT 123 EX 28/04/10 620000 334111 477 EX 22/06/10 112500 112500 478 EX 22/06/10 112500 112500 479 EX 22/06/10 112500 112500 480 EX 22/06/10 112500 112500 481 EX 24/06/10 562500 562500 INTEREST 10/08/10 22500 22500 TOTAL 1481611 7. On examination of the details in the said table, it appears that all allegedly unpaid invoices are issued in April, 2010 and June, 2010, whereas the petitioner filed present petition on 25.6.2010 (though the petition seems to have been prepared in April, 2013 and also seems to have been affirmed on 3.5.2013). However, the office record shows that the petition was entered in the Court Registry on 25.6.2013 and it is circulated for hearing for the first time today, i.e. on 10.7.2013. 8. Thus, it prima facie seems that the claim of the petitioner is hit by limitation, unless the petitioner is able to establish by leading appropriate evidence, that by conduct of respondent, e.g. admission of debt and/or promise to pay by the respondent, the limitation stands extended. 9. However, on record of present petition, any material is not placed which would demonstrate that the period of limitation stands extended on account of the respondent's conduct and/or its promise to pay. On the contrary, the respondent has remained silent even after service of statutory notice. Thus, there are disputed questions of fact and law. 10. Thus, the petition involves disputed issues which cannot be gone into in this jurisdiction. On the contrary, the respondent has remained silent even after service of statutory notice. Thus, there are disputed questions of fact and law. 10. Thus, the petition involves disputed issues which cannot be gone into in this jurisdiction. Moreover, if such petition involving disputed issues is entertained, then it would amount to allowing the petitioner to artificially save stamp duty and it also appears that though prima facie the claim appears to be hit by limitation and though the petition involves disputed issues of facts and law (in view of aforesaid facts) and despite the fact that such features or factors - which are intrinsically involved in the petition - may provide bonafide defence to the respondent, the petitioner has taken this route of filing company petition so that it may not be confronted with the issue of limitation and may not have to spend on stamp duty. 11. For the aforesaid reasons, this Court is not inclined to entertain present petition and the petition is accordingly disposed of.