Hallex Applied Power Pvt Ltd v. Gulati Agencies (P) Ltd

ORDER %

12.10.2012

¶1This appeal impugns the order dated 26^'^ September, 2012 of the learned Company Judge admitting Co. Petition No. 131/2010 filed by the respondent for winding up of the appellant Company and though appointing the Provisional Liquidator but deferring the said appointment as well as citation of the petition for two weeks, to give opportunity to the appellant Company to make payment of Rs.14,47,024/- along with interest @ 18% per annum in which amount the appellant Company has been found to be indebted to the respondent.

¶2'fhc learned Company Judge has found that the appellant Company had placed purchase orders on the respondent for supply of goods which were duly received and consumed by the appellant Company and the appellant Company in payment ofprice thereof had issued a chequedated so"' March,2009 for Rs.15,72,024/-in favourofthe respondent;thatthe 1/- Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. said cheque was however dishonoured;that part paymentof Rs.1,25,000/- was made by the appellant(^ompanyto the respondenton 19'^ September, 2009 leaving the balance of Rs.14,47,024/-for which the Demand Notice prioi to the institutionofthe petitionwas issued; that though the appellant Companyhad deniedthe receiptol the said Noticebut the saidreceiptstood proved from the 'AD' Card thereofreturnedto the respondent;that another cheque dated 12"' October,2009 for Rs.l5 lac was issued by .the appellant Company in favour of the respondentthough as security and which also stood dishonoured;that the appellant Company has also issued 'C Forms under the Sales lax/VAF to the respondent which also constituted admission ol the transaction; that the appellant Company had taken conflicting pleas of non-receipt and return of the goods; that the appellant had in the e-mail correspondence also admitted the liability to the respondent.

¶3The senior counsel for the appellant Company has contended that in the face of the disputes of luct raised by the appellant Company, no case for entertaining the petition for winding up was made out and the appellant Company, to show its bona fide is willing to deposit in the Court a part of the amount claimed by the respondent and that the respondent should be directed to institute a suit for recoveiy of the amounts claimed to be due against the appellant Company. It is further argued that once no case of commercial insolvency of the appellant Company is made out, winding up in any case cannot be ordered.

¶4We have enquired from the senior counsel for the appellant Company 2/- as to which period the transaction of sale of goods relates and when the appellant Company claims to have received and rejected and retnmed the goods, 'fhe senior counsel on instimctions replies that the goods were received as well as returned in the year 2008. We have next enquired as to whether the 'C forms were issued contemporaneously with the receipt of goods or subsequently. The senior counsel, again on instructions states that the 'C Forms were issued subsequently in the year 2009. To our query as to why, if the goods had been rejected and returned, were the 'C Forms issued subsequently, there is no reasonable explanation, 'fhe only argiunent which could be coughed up is that the same were given in view of the 'ongoing relationship'. Flowever to our further query as to what was the need for giving the '(T Forms relating to specifrc transactions which according to the appellant Company did not take place or fructify and as to what were the 'ongoing transactions', again there is no explanation.

¶5'fhe same in our view is suiTrcient ibr us to hold that the defence of the appellant Company to the petition for winding up is a make belief and an afterthought and mala fide.

¶6Similarly, if the ar-gumentof the appellant (Companyof no order for winding up being possible if the (mmpany is in a solvent condition were to be accepted, it would make the provision for winding up redundant.

¶7We therefore do not find any merit in this appeal and dismiss the same. ^ No costs. ^ CHIE(Frus TICE RAJIV SAIIAIENDLAW, J OCTOBER 12,2012/pp.. I ^ 3/-

$-6. *• IN THE HIGH COURT OF DEIJII AT NEW DELHI )- Co. App. No.84/2012, CM No.17727/2012 (for stay) & CM No.17728/2012(for exemption). M/S IIA1J.J/XAPPLIl.iDPOWERPVli LTD Appellant Thi-ough: Mr. Nceraj Kishan Kaul, Sr. Adv. with Mr. Sanjeev Narula, Adv. versus M/S CjULAHAG1VNC1P./S(P) LfD. ... Respondent Thi'ough: None. CORAM: HON'BLE THE CHIEF HJSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW ^