Karnataka High Court
M/S Anuvarath Appearls Private Limited vs M/S Primus Brands Pvt Ltd on 16 August, 2012
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 16TH DAY OF AUGUST, 2012
BEFORE
THE HON'BLE MR. JUSTICE JAWAD RAHIM
COMPANY PETITION NO.93 OF 2010
BETWEEN:
M/S. ANUVARATH APPEARLS
PRIVATE LIMITED
HAVING ITS REGISTERED OFFICE
AT NO.5 AND 6, AZIZ SAIT INDUSTRIAL AREA
1ST MAIN ROAD, NAYANDAHALLI
MYSORE ROAD
BANGALORE-560 039
REPRESENTED BY ITS DIRECTOR
SHRI. PRAKASH CHAND ...PETITIONER
(BY SRI. H.S.DWARKANATH, ADVOCATE)
AND:
M/S. PRIMUS BRANDS PVT. LTD.,
A COMPANY REGISTERED UNDER THE
COMPANIES ACT, 1956
HAVING ITS REGISTERED OFFICE AT
NO.7, 1ST CROSS, 3RD MAIN
ASHWINI LAYOUT, EJIPURA
BANGALORE-560047
REPRESENTED BY ITS
MANAGING DIRECTOR ...RESPONDENT
(BY SRI. K.S.VENKATARAMANA, ADVOCATE)
*****
THIS COMPANY PETITION IS FILED UNDER SECTION
433 E AND F OF THE COMPANIES ACT, 1956, PRAYING THAT
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FOR THE REASONS STATED THEREIN THIS HON'BLE COURT
MAY BE PLEASED TO WIND UP M/S. PRIMUS BRANDS PRIVATE
LIMITED AND ORDER COST OF THE PROCEEDINGS AND
GRANT SUCH OTHER RELIEF AS THIS HON'BLE COURT MAY
DEEM FIT IN THE FACTS AND CIRCUMSTANCES OF THE CASE,
IN THE INTEREST OF JUSTICE AND EQUITY ETC.
THIS PETITION COMING ON FOR ADMISSION THIS DAY,
THE COURT MADE THE FOLLOWING:-
ORDER
This application for winding up of the respondent- company is filed by the petitioner, who claims to be a company incorporated under the Companies Act and is in business.
2. The petition is under Section 433(e) and (f) of the Companies Act. In response to notice of the application, the respondent- company has entered appearance.
3. Heard on both sides. Perused records insupplimentation thereto which reveals;
a) The petitioner claims it is in business of manufacturing readymade garments of all types both branded and unbranded made of cotton, wool, silk, jute and other 3 yarns. It claims to have established its business of repute in commercial circles and also with the consumers.
4. According to the petitioner, the respondent-company approached it (petitioner) requesting to supply its products and assured payment. Believing the assurance of the respondent, the petitioner claims to have supplied to the respondent readymade garments in terms of its order and delivered the same on credit basis. The respondent company received the finished products from the petitioner- company and acknowledged delivery of it through invoices produced at Annexures B to Z , A1 to Z1 and A2 to M2. The value of products so supplied is estimated by the petitioner at Rs.33,18,125.32 paise. It is alleged, despite the request and demand, the respondent company has failed to clear outstanding. The petitioner has referred to notice issued by it to the respondent calling upon it to clear the outstanding through notice dated 22.3.2010, which notice was duly served upon the respondent, but it failed to respond.
5. Basing on the statutory notice issued under Section 434 of the Companies Act and after lapse of 21 days from the 4 date of receipt of notice by the respondent, the petitioner has presented this petition for winding up of the respondent - company.
6. It is further alleged that respondent company is making all attempts to sell its assets to defraud the creditors.
7. In negation to the allegations in the petition, the respondent has filed a counter denying it has defaulted in making any payment to the respondent.
8. From the material propositions in the pleadings of the respondent, it could be seen the respondent does not dispute that it had transacted with the petitioner for purchase of its merchandise. The defence which has taken is it has discharged its liability and has made payment to the petitioner leaving no arrears. To substantiate such contention, the respondents have produced certain documents appended to the statement of objection amongst which, reference is made to Annexure R2 to R4. R2 to R4 are debit notes. Relying on it, the respondent's main stand is, it has cleared the entire liability being the value of the goods received by it. It is due only 5 Rs.1,12,320/- and has duly intimated the true accounting through E-mail Annexure - R2 dated 11.1.2010. The leaned counsel for the petitioner could not dispute that the petitioner has received the E-Mail sent by the respondent on 11.1.2010, wherein it has cleared all liabilities and was not due any amount. There is also reference in the counter of the respondent that most of the goods were sub-standard and were returned to the petitioner company. From such defence, it is clear the respondent is not admitting the liability as alleged by the petitioner and bonafide dispute is raised for adjudication.
9. From the petition averments and the statement of counter, it is evident that petitioner alleges the due of Rs.33,18,125.32 ps. The respondent has prima facie shown that it has disputed the liability and has also referred to the sub-standard material leaving balance to be paid only Rs.1,12,372/-. The respondent has also produced documents showing supply of goods for the period from 2006 to 2007 vide invoice Nos.1191, 1696 dated 15.12.2007 and 24.3.2008. It has also shown the dispute raised by it as early as in the 6 month of September 2008. From the factual position, it is clear even though the petitioner has made the claim against the respondent, the respondent has not admitted the claim necessitating and a detailed enquiry to determine what exactly due by the respondent. Such exercise is not contemplated under Section 433-(e) of the Act. No grounds as enumerated under section 433(e) are made out for accepting the action of winding up of the respondent- company.
10. Hence, the petition fails and the same is dismissed.
SD/-
JUDGE Msu/Bsv