Punjab-Haryana High Court
Unisystems P. Ltd. vs Stepan Chemical Ltd. on 5 September, 1985
JUDGMENT Sehgal, J.
1. This judgment will also dispose of C. A. No. 23 of 1984 as the law point involved in both the appeals is the same.
2. Company Application No. 19 of 1984 arises out of the order dated 20th July, 1984, of a learned company judge of this court whereby Company Petition No. 77 of 1983 under sections 433, 434 and 439 of the Companies Act, 1956 (hereinafter called "the Act"), moved by the appellants for winding up a firm, M/s Stepan Chemical Ltd. (hereinafter called "the respondent company "), was dismissed.
3. The facts of Company Petition No. 77 of 1983 in brief are that the appellant supplied corrugated boxes of different sizes to the respondent company between January 18, 1979, to March 7, 1979. Towards the value of the goods supplied, it made payment to the tune of Rs. 92,000 but the balance amount of Rs. 12,900.85 remained unpaid. The respondent company issued a cheque dated June 20, 1980, for Rs. 12,900.85 in favour of the appellant but this cheque was not honoured by the bankers. The appellant alleges that the respondent company was liable to pay interest at the rate of 2% per month if the price of the goods represented by the invoice was not paid within the agreed credit period and on this account a sum of Rs. 14,926.77 was due from it up to October 31, 1981. It is further alleged that the respondent company in spite of service of notice failed to make the payment of the balance principal amount as well as interest. As the respondent company was unable to pay its debts, the appellant filed the instant petition for its winding-up.
4. On receiving notice of the petition, the respondent company filed its written statement and also enclosed therewith a bank draft dated December 15, 1983, for Rs. 12,823.85 so as to satisfy the appellant's claim for the principal amount. The respondent company, however, disputed its liability for payment of interest. The learned company judge, vide order under appeal, observed that the principal amount admittedly had been paid but since the learned counsel for the respondent company had controverted the claim for interest on the amount which was withheld on the ground that there was no stipulation between the parties regarding payment of interest and the appellant was basing its claim for payment of interest on certain conditions contained in the bills and that the claim for interest being totally disputed, no winding up order could be passed on that basis. Consequently, the petition for winding up of the respondent company was dismissed.
5. The learned counsel for the appellant contends that the appellant had not presented the petition for winding up of the respondent company exclusively on the ground of non-payment of interest which was being disputed by the respondent company. The interest has accrued on the principal amount which had been admitted by the respondent company and had in fact been paid during the course of disposal proceedings of the winding up petition. The claim for interest on the admitted amount of the liability of the principal debt so disputed by the respondent company ought to have been adjudicated upon by the learned company judge. The learned counsel for the respondent company, on the other hand, contended that since there was no agreement between the parties for the payment of interest and no usage or custom had been pleaded, the appellant could not claim interest on the principal amount. This contention of the learned counsel for the respondent company, however, touches the merits of the controversy whether or not the appellant is entitled to interest on the principal debt.
6. We are of the view that since the learned company judge was seized of the matter, and the liability to pay the principal amount of debt, on the basis of which the respondent company had been sought to be wound up had been admitted by the respondent company and had in fact been paid up through a bank draft, the question whether or not the appellant was entitled to the interest allegedly due to it from the respondent company also ought to have been decided by him, and also the parties should not have been relegated to yet another litigation in a civil court on the question whether or not the appellant was entitled to interest on the principal amount of debt. We feel that the question of entitlement of the appellant to payment of interest was not such a disputed question as could not fall within the ambit of adjudication of a winding up petition under section 434(1)(a) of the Companies Act.
7. We accordingly set aside the order dated July 20, 1984, of the learned company judge. The question whether or not the appellant is entitled to interest claimed by it on the principal amount of debt and whether the ground of non-payment of such interest falls within the mischief of section 434(1)(a) of the Companies Act to entitle the appellant to the relief of winding up of the respondent company shall be decided by the learned company judge.
8. There shall be no order as to costs.