Delhi High Court
Indo American Electricals Ltd. vs Capital Meters Pvt. Ltd. on 30 April, 1999
Equivalent citations: 1999IVAD(DELHI)517, 79(1999)DLT438
Author: D.K. Jain
Bench: D.K. Jain
JUDGMENT D.K. Jain, J.
1. By this petition under Section 433 read with Sections 434 and 439 of the Companies, Act, 1956 (for short the Act), the petitioner seeks winding up of the respondent Company on the ground of its inability to pay its debts.
2. According to the petitioner Company they had sold and delivered to the respondent super-enamelled copper wire vide two invoices, dated 14th Janu- ary, 1992 and 29th January, 1992 respectively, for Rs. 78,405/- and Rs. 84,106/-, totalling Rs. 1,62,511/- as per the terms and conditions govern- ing the sale of the said goods, the payment of the bill amounts was to be made within thirty days of the receipt of the bills/materials; on petitioner's persistent requests and demands only a sum of Rs. 1,05,697.85, towards the aforesaid amount way paid by the respondent, thus leaving a balance of Rs. 56,813.15 p. as the principal amount due to the petitioner. The respondent having failed and neglected to pay the said balance amount, the petitioner Company sent a registered letter to the respondent on 30th July, 1992, demanding the outstanding amount but with no result. Ultimate- ly, on 15th January, 1993, the petitioner issued statutory notice under Section 434 of the Act, requiring the respondent to make payment of the balance amount together with interest @ 24% per annum. There was no re- sponse to the said notice on behalf of the respondent Company. Hence the present petition.
3. The petition is resisted by the respondent company and in the affidavit in opposition, it is stated that no amount is due and payable to the petitioner by the respondent and there are bona fide disputes with regard to the claim made in the petition. It is alleged that the petitioner has suppressed in the petition a material fact that some of the goods sold under the aforenoted invoices, being defective, were returned to the peti- tioner under the cover of a debit note, dated 10th February, 1992 and the same were received on behalf of the petitioner on 19th February, 1996. In support of its claim that nothing is due to the petitioner, a copy of the certificate issued by the Chartered Accountant, certifying that no amount is outstanding and payable to the petitioner by the respondent Company, has also been filed with the reply affidavit.
4. In the rejoinder affidavit filed on behalf of the petitioner, the receipt of any defective goods under the aforenoted debit note is denied. It is alleged that the said debit note is a fake and false document. It is averred that the respondent, having accepted the goods without any complaint about their quality, and quantity they are now estopped from raising the dispute about the quality of the goods supplied.
I have heard learned Counsel for the parties.
5. The main thrust of the argument of Mr. Alok Kumar, learned Counsel for the petitioner, is that the respondent Company having received and accepted the goods in January, 1992 without demur, it is not too late for them to raise the plea of defective goods having been supplied. It is contended that, if any defect in the goods supplied was noticed, it should have been intimated to the petitioner within a reasonable time and thus having not been done, in view of the provision of Section 22 of the Sale of Goods Act, 1930, the respondent Company cannot now raise the defense of inferior quality of the goods. It is asserted that the debit note, dated 10th Febru- ary, 1992, relied upon by the respondent Company is a fake document.
6. It is well settled that the Court will not wind up a company if the debt is bona fide disputed and the defense raised is a substantial one, which of course depends on the facts and circumstances of each case.
7. In the instant case, as noted above, the entire defense of the repondent Company is based on its plea of supply of defective goods, which are also claimed to have been returned to the petitioner. Therefore, to test the veracity of the said stand and genuineness of the debit note placed on record, the respondent Company was directed to produce the office copy of the debit note No. 623, dated 10th February, 1992, along with the debit note book containing it. The same was produced. Having glanced through the same, the Court recorded its prima facie view that the original debit note book produced was maintained in the ordinary course of respondent Company's business. Upon this, learned Counsel for the petitioner sought adjournment to have further instructions. The case was accordingly adjourned to this date. Mr. Alok Kumar, learned Counsel for the petitioner, states that he has no further instructions in the matter and the Court may pronounce its order.
8. Having heard learned Counsel for the parties and carefully perused the documents placed on record by both the sides, I am satisfied that the respondent has raised a tenable defense for the claim of the petitioner and in these summary proceedings it is neither possible nor permissible to determine the amount which may be due to the petitioner in the ultimate analysis. Therefore, I feel that it is a matter which can more appropriately be agitated in a properly framed suit in a Civil Court. Since the respondent Company has a reasonable defense for non-payment, it cannot be deemed unable to pay its debts on account of any legal presumption arising under Section 434 of the Act.
9. In my opinion, therefore, this is not a fit case for exercise of discretion under Section 433 of the Act and to proceed to make an order for inding up of the respondent Company.
10. For the foregoing reasons, the petition fails and is accordingly dismissed with liberty to the petitioner to take recourse to any other remedy which may be available to them in accordance with law.
There will, however, be no order as to costs.
Petition dismissed.