Madras High Court
Tele Access E-Services Private Limited vs Aircel Limited on 7 March, 2014
Author: R.Sudhakar
Bench: R.Sudhakar
In the High Court of Judicature at Madras Dated : 07.3.2014 Coram : The Honourable Mr.Justice R.SUDHAKAR C.P.No.69 of 2012 Tele Access e-Services Private Limited having its regd.office at No.7, I Floor, New Metalage Industries Premises, Subhash Road, Jogeswari (E), Mumbai-60 rep.by its Director Mr.Rahul Nachane ...Petitioner Vs AIRCEL Limited, having regd.office at Spencer Plaza, 769, Anna Salai Chennai-2. One of its branch offices at Opus Centre, No.47, M.I.D.C., Andheri (East), Mumbai-93. ...Respondent PETITION under Sections 433(e) and (f) read with 434(i)(a) and 439 (i) and (b) of the Companies Act, 1956 seeking to wind up the respondent company and to appoint the Official Liquidator, High Court, Madras as the Liquidator to take charge of the assets of the respondent company. For Petitioner : Mr.Anil Relwani for M/s.N.V.S.Associates For Respondent : Mr.Madan Babu ORDER
The petitioner has filed the above company petition seeking to wind up the respondent company.
2. Heard Mr.Anil Relwani, learned counsel for the petitioner and Mr.Madan Babu, learned counsel appearing for the respondent.
3. Notice was ordered to the respondent on 12.3.2012 in the above company petition. After service of notice, the respondent entered appearance through a counsel and filed a counter affidavit.
4. The case of the petitioner is that the respondent company is a well known tele communication service provider under different modes and the petitioner is a company providing tele calling services, which include collection, customer care and retention. On 9.11.2009, in the e-mail sent by one Mr.Neelesh Fernandes to the petitioner company, it has been stated that the contract to perform tele services was given to the petitioner. Pursuant to the said e-mail, another e-mail was sent on 11.11.2009 asking them to commence the tele services and enclosing a copy of the award paper dated 10.11.2009. It is based on this award paper, services were provided from time to time and based on the same, they are making series of claims by way of e-mails, which culminated in the final notice dated 12.6.2010, addressed to one Mr.Madan Bajpai, Circle Head, Aircel Limited, Andheri East, Mumbai-93 wherein they made a claim of Rs.30,68,972.86 Ps, the relevant portion of which, reads as follows :
"We started following up for the payments with Mr.Neelesh Fernandes for January 2010. We were informed by him that the payment was under process and was awaiting various approvals. Mr.Neelesh Fernandes also confirmed that the payments were being processed by sending SMS to Ms.Ajita Nachane on 10th March 2010 & 29th March 2010.
This went on for two months after which we also started following up for the payment with mails (dated 9th March 2010 & 15th April 2010) of which cc was marked to Ms.Seema Pai. We also sent mails directly to Ms.Seema Pai on 14th April 2010 & 21st April 2010. This final mail was sent to you. Copies of these mails are attached as Annexure N (pages 1-10)."
5. Pursuant to that, another notice was sent on 23.6.2010 to be hand delivered. However, it was not received. Therefore, the petitioner sent another notice dated 24.6.2010 by India Post. Despite the same, the amount liable to be paid has not been paid and thereafter, a legal notice dated 25.6.2011 was issued to Aircel Cellular Limited, which is not the respondent and the statutory notice dated 13.9.2011 was issued to the Chennai address claiming the very same amount as mentioned above.
6. In response to this, a reply was sent through a counsel as a preliminary notice on 10.10.2011 and a final detailed reply was also sent on 27.10.2011 primarily denying that no work was awarded and that they have not registered any service in respect of tele calling as detailed in the statutory notice. It has been further stated in paragraph 5 of the final reply that since they did not perform any work, they are not under any obligation nor they are liable to discharge the debt as claimed and that it is a false claim. It has been stated in paragraph 6 that the petitioner adopted unfair, improper and extra legal means and methods to extract money from the respondent. It has also been stated that they are in sound financial position and discharged the lawful debts. Since the petitioner is making unlawful claims, they denied each and every claims of the petitioner. Thereafter, the above company petition has been filed.
7. A counter has been filed by the respondent contending that the entire claim is false and vexatious.
8. To counter the claim that there is no denial to the petitioner's notice dated 12.6.2010, which was received by Aircel Cellular Limited and on which, an endorsement has been made, the respondent has stated in paragraph 14 of the counter affidavit that the seal and signature are disputed. The petitioner had subsequently sent it by post, but there is no acknowledgment for the same. Hence, the claim is prima facie not admitted.
9. I am not inclined to go into this controversy, as it may affect the rights of the rival parties. Nevertheless, it creates a doubt in the mind of the Court as to whether such a document was served on the competent person of the respondent company. Therefore, it is for the petitioner to establish in a manner known to law. Further, such a plea taken in the company petition will have to be proved by letting in evidence, when the factum of service of notice is stoutly denied by the respondent.
10. On going through the typed set of documents filed by the petitioner and the dispute raised by the respondent, this Court is of the prima facie view that there appears to be a dispute between the parties and this dispute is justified by the fact that the so called award even as per the e-mail dated 9.11.2009 was in the stage of approval and the award is signed by three out of five persons. The Heads of the Department have not approved it. It is for the petitioner to prove that it has been duly approved and that the work has been entrusted and that they completed the work in terms of the award paper.
11. The scope of the dispute raised by the petitioner is basically on the fact that there was an award paper granted and consequent to that, services were rendered and even if services were rendered, what is the quantum of liability of the respondent to the petitioner has to be decided. A notice under Sections 433 and 434 has been issued and that has been denied by the respondent in toto. It therefore follows that these issues could be adjudicated only in a forum after a full-fledged trial and not in a proceeding of this nature.
12. What is substantial dispute has been discussed in Iba Health (I) (P) Ltd. Vs. Info-Drive Systems Sdn. Bhd. [2010 (10) SCC 553] wherein in paragraphs 20 to 23, it has been held as follows :
"20. The question that arises for consideration is that when there is a substantial dispute as to liability, can a creditor prefer an application for winding-up for discharge of that liability? In such a situation, is there not a duty on the Company Court to examine whether the company has a genuine dispute to the claimed debt? A dispute would be substantial and genuine if it is bona fide and not spurious, speculative, illusory or misconceived. The Company Court, at that stage, is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. The grounds of dispute, of course, must not consist of some ingenious mask invented to deprive a creditor of a just and honest entitlement and must not be a mere wrangle. It is settled law that if the creditors debt is bona fide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding-up procedure. The Company Court always retains the discretion, but a party to a dispute should not be allowed to use the threat of winding-up petition as a means of forcing the company to pay a bona fide disputed debt.
21. In this connection, reference may be made to the judgment of this Court in Amalgamated Commercial Traders (P) Ltd. v. A.C.K. Krishnaswami1 in which this Court held that: (Comp Case p. 463) It is well settled that a winding-up petition is not a legitimate means of seeking to enforce payment of the debt which is bona fide disputed by the company. A petition presented ostensibly for a winding-up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatised as a scandalous abuse of the process of the court.
22. The above mentioned decision was later followed by this Court in Madhusudan Gordhandas and Co. v. Madhu Woollen Industries (P) Ltd.2 The principles laid down in the above mentioned judgment have again been reiterated by this Court in Mediquip Systems (P) Ltd. v. Proxima Medical System GmbH3 wherein this Court held that the defence raised by the appellant Company was a substantial one and not mere moonshine and had to be finally adjudicated upon on the merits before the appropriate forum. The above mentioned judgments were later followed by this Court in Vijay Industries v. NATL Technologies Ltd.
23. The principles laid down in the above mentioned cases indicate that if the debt is bona fide disputed, there cannot be neglect to pay within the meaning of Section 433(1)(a) of the Companies Act, 1956. If there is no neglect, the deeming provision does not come into play and the winding up on the ground that the company is unable to pay its debts is not substantiated and non-payment of the amount of such a bona fide disputed debt cannot be termed as neglect to pay so as to incur the liability under Section 433(e) read with Section 434(1)(a) of the Companies Act, 1956."
13. A useful reference could be made to the decision in the case of Pradeshiya Industrial & Investment Corporation of U.P. Vs. North India Petrochemicals Ltd. [1994 (3) SCC 348], wherein the relevant portion reads as follows :
"What then is liability when the section says "unable to pay its dues"? That should be taken in the commercial sense. In that, it is unable to meet current demands. As stated by William James, V.C. it is "plainly and commercially insolvent that is to say, that its assets are such, and its existing liabilities are such, as to make it reasonably certain as to make the Court feel satisfied that the existing and probable assets would be insufficient to meet the existing liabilities. [In European Life Assurance Society Re {LR (1869) 9 Eq 122}]; [V.V.Krishna Iyer & Sons Vs. New Era Mfg. Co.Ltd. {1965 (35) Comp.Cases 410} : 1965 (1) Comp.L.J. 179 (Ker.)]."
14. By referring to these two decisions, the respondent prima facie made out a case of substantial dispute as to liability. The award of work itself is in question and therefore, the respondent's plea that the petition filed for winding up of the company should be dismissed at the threshold deserves consideration. Even assuming that there are some correspondence between parties, which are also disputed by the respondent as one between the applicant and the so called employee, it is a case where it has to be established by trial. In the guise of winding up petition, the petitioner cannot seek to recover certain amounts, which admittedly are not only in dispute, but the work order also is in dispute. When the entire transaction is shrouded in mystery and the persons competent to acknowledge the debt did not acknowledge it, this Court fails to understand to as to how the petition for winding up could be entertained. There is no element of neglect to pay and the provisions of Section 433(1)(a) of the Companies Act do not get attracted to the facts of the present case. The defence taken by the respondent is not sham. It is not invented or contrived by the respondent to dispute the claim. But, there appears to be a genuine dispute, which could only be resolved in a trial. Since there is no admission of debt nor can there be a neglect to pay on such dispute, I find no reason to entertain this petition.
15. The ingredients of Sections 433 and 434 are not satisfied. I am not inclined to pass an order of winding up. Hence, the above company petition is dismissed.
07.3.2014 Index : Yes Internet : Yes RS R.SUDHAKAR,J RS CP.NO.69 OF 2012 07.3.2014