Delhi High Court
Planet Advertising Pvt Ltd vs Ambience Pvt Ltd & Anr on 3 August, 2018
Author: Jayant Nath
Bench: Jayant Nath
$~CP-23
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 03.08.2018
+ CO.PET. 812/2015
PLANET ADVERTISING PVT LTD ..... Petitioner
Through Mr.Kunal Kalra and Mr.Ankur
Aggarwal, Advs.
versus
AMBIENCE PVT LTD & ANR. ..... Respondent
Through Ms.Nanda Devi and Mr.S.K.Jha,
Advs.
CORAM:
HON'BLE MR. JUSTICE JAYANT NATH
JAYANT NATH, J.(ORAL)
1. This petition is filed under section 433(e), 434 (a) read with section 439(b) of the Companies Act, 1956 seeking to wind up the respondent company. The petitioner submits that it was approached by the respondent company for displaying some of the outdoor advertisement. Purchase orders were placed by the respondent company on 10.6.2014. Between July, 2014 to November, 2014 the petitioner states that he has carried out work of the respondent company to its entire satisfaction and accordingly raised invoices for the work done. Despite completion of the work it is pleaded that payment of Rs.1,01,38,691/- has not been made. Petitioner claims to have sent emails/SMSes to the respondent. Legal notice was sent on 20.08.2015. Reply was received from the respondent where the respondent has denied the submissions of the petitioner.
2. The respondents have filed their reply. In the reply the respondents CO.PET. 812/2015 Page 1 of 5 state that respondent disputes the amount allegedly outstanding in view of the fact that the petitioner has failed to provide the requisite services as per agreements. It is stated that the petitioner has failed to honour the terms of the agreement of service entered into by them with the respondent. Further, it is stated that the materials used in the advertising campaigns were not as per agreements. Based on this, the claim of the petitioner has been denied.
3. I have heard learned counsel for the parties. Learned counsel for the petitioner has relied upon certain emails and whatsapp messages received from the respondent to submit that there was admission of liability. It has also been pleaded that the total outstanding liability was to the tune of Rs.1,03,93,398/-. It has also been stated that as there was inordinate delay in making payment to the petitioner the petitioner on the request of the respondent issued fresh invoices in the name of „Ambience Projects and Infrastructure Pvt.Ltd.‟. It was stated by the respondent that there was shortage of funds in the respondent company. Hence, in deference to the wishes of the respondent company a consolidated invoice for Rs.53,66,278/- (excluding service tax) was issued in the name of „Ambience Projects and Infrastructure Pvt. Ltd.‟.
4. Learned counsel for the respondent has vehemently denied the dues. She states that the dues are bonafidely disputed. She has taken me through Annexure P-5 of the petition where an extract from some email written by the petitioner has been reproduced stating that the petitioner is expecting the bill of Rs.53,66,278/- to be cleared within a week. She has also relied upon an email dated 31.7.2014 where the respondents have communicated to the petitioner some defects in the work carried out. Based on these documents she submits that there are no admitted dues payable to the petitioner. The CO.PET. 812/2015 Page 2 of 5 work that was done by the petitioner was found to be defective. Some amount she submits would be payable but the same is not quantified. She further submits that Civil Suit will be an appropriate remedy in this case for the petitioner to claim its dues. She relies upon judgment of this court in Focus Management Consultants Pvt. Ltd. vs. Second Foundation India Pvt. Limited, (2007) 3 CompLJ127 (Del).
5. I may refer to some of the documents relied upon by the petitioner. The petitioner has placed on record an email dated 22.12.2014 whereby the petitioner has pointed out regarding an outstanding amount of Rs.1,03,93,398/- to the respondent. The respondent has replied on the same date stating that once the cheques are ready intimation will be sent to the petitioner. Hence, there is no denial of the dues payable to the petitioner.
6. Similarly, learned counsel for the petitioner has relied upon an exchange of whatsapp message which was sent on 17.11.2014 where the reply was received on 17.11.2014 stating that the work will be taken care of. Again there is no denial of the dues of the petitioner.
7. I also cannot help noticing that in the reply the respondent do not deny that the order was placed on the petitioner. The plea is that the petitioner failed to provide the agreed/approved sites for the agreed/approved size and location under the agreements including Raja Garden and DND Flyover Delhi to Noida. It is further stated that the petitioner never provided the services as per the agreements and failed to change the damaged flexes within the agreed time. These pleas are being taken in the reply bereft of any document or detail. No communication or document is sought to be placed on record whereby the respondent in the past had informed the petitioner of its failure to comply with the terms and CO.PET. 812/2015 Page 3 of 5 conditions of the purchase order. There is not even one document place on record to show that the petitioner were informed that they have failed to adhere to the terms and conditions of the purchase orders or that the work being performed by them is defective. In fact what the learned counsel for the respondent has relied upon is a communication dated 31.07.2014 allegedly written by the respondent regarding some defects. This communication has been attached by the petitioner themselves. This is the solitary communication which shows some defects were there in the work done by the petitioner. Presumably, the work would have been completed by the petitioner as there is no subsequent correspondence. Clearly, the defence raised is not bona fide.
8. Today in the course of submissions that were made by the learned counsel for the respondent, she did not deny that no work has been done by the petitioner. Her plea was that some work had been done by the petitioner and there were some defects in the work that was done. Based on this she pleaded that some amount may be payable to the petitioner but the same is not quantifiable.
Much stress was also laid by the learned counsel for the respondent on the fact that there are two different amount being claimed by the petitioner, namely, the outstanding amount of Rs.1,03,93,398/- and another amount claimed as due was Rs.53,66,278/-. Learned counsel for the petitioner had tried to explain away the said differences stating that as there was delay in clearance of the bills by the respondent, on the request of the respondent, a bill for Rs.58,66,278/- was raised on a sister concern which was said to have funds to pay dues.
9. Keeping in view these facts, it is manifest that some amount does CO.PET. 812/2015 Page 4 of 5 remain payable by the respondent to the petitioner.
10. In Madhusudan Gordhandas & Co. Vs. Madhu Wollen Industries Pvt. Ltd., AIR 1971 SC 2600 the Supreme Court held as follows:-
"22.....Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the court will make a winding up order without requiring the creditor to quantity the debt precisely (See Re. Tweeds Garages Ltd. [1962] Ch. 406...."
11. In view of the above legal position, I admit the present petition. However I defer appointing the OL as the PL till the next date of hearing.
12. In the meantime, the respondent is free to deposit a sum of Rs.53,66,278/- within four weeks from today with the Registrar General of this Court. If such amount is deposited the petitioner would be free to have the said amount released. In that eventuality, the order admitting the petition shall stand revoked and the petition shall stand disposed of. Further the petitioner would be free to approach civil court by way of appropriate civil proceedings to claim any further amount that it seeks. In case such civil proceedings are commenced, nothing stated herein would bind the parties to the findings recorded above.
13. List on 11.12.2018.
JAYANT NATH, J.
AUGUST 03, 2018/n CO.PET. 812/2015 Page 5 of 5