JUDGMENT
Prasun Kumar Deb, J.
1. This is an application under Sections 433(e), 434(1)(a) and 439(1)(b) of the Companies Act, 1956 (hereinafter to be referred to as ‘the Act’), for winding up of the opposite party Company. The opposite party i.e. Hitek Industries (Bihar) Limited is a Company incorporated and registered as a Public Company and its registered office is situated at Mahilong, Ranchi.
2. The main objects of the petitioner Company is to do business in different fields of Industries. The petitioner is manufacturer of C.R.C.A. Sheet, Coil, Cold Rolled Sheet concealed annealed etc., and it was placed with orders by the opposite party Company for C.R.C.A. Coils under Invoice/Bill No. 8288, dated 31.3.1993 for 30,000.00 M.T. at various rates inclusive of freight charges aggregating to Rs. 5,03,802/- including Excise duty etc. The said invoice/bill is contained in Annexure-1 to this Company petition. The goods were supplied and then bills were submitted and the same was to be paid by the opposite party Company as after the orders have been placed and the petitioner supplied and delivered goods to the opposite party, the same were received without raising any dispute as regards the quality, quantity and price thereof. In that view of the matter, a sum of Rs. 5,03,802/- have become due and payable under the aforesaid invoice.
3. The opposite party was given credit by the petitioner about the amount of Excise duty and rejected materials to the tune of Rs. 25,213/- and the balance amount out of the said invoice to the tune of Rs.. 4,78,589/- became due and the same had never been paid from the side of the opposite party. Although repeated reminders and demands have been placed from the side of the petitioner but the opposite party went on delaying the matter by giving assurance time to time for making such payments. By Letter No. HI: RNC: 396 dated 8.9.1993, the opposite party admitted the receipt of the goods and requested the petitioner to bear with them for some time as their Managing Director is out of India and would back by September, 1993, but, according to the petitioner, inspite of such assurance, the opposite party failed and neglected to pay the amount. By Fax Message dated 16.12.1993, again reminder was given to the opposite party by the petitioner to make payment but the said payments had not been made. The letters dated 8.9.1993 and 16.12.1993 of the opposite party have been annexed as Annexure 2 and 3 to this Company petition. After much delay., the petitioner was paid Rs. 50,000/- but the liability of Rs. 4,28,589/- inclusive of interest remained unpaid. Finding no other alternative, the petitioner served notice through its Advocate by registered post for making payment and it was cautioned in that legal notice that unless payments are being made with interest within the specific period as mentioned in the notice itself which has been marked as Annexure-4, the action should be take under Sections 433 and 434 of the Act. Then by letter dated 30.6.1994. the Managing Director of the opposite party informed the petitioner vide Annexure-5 that payment of the petitioner would be made within a fortnight as delay was caused in making payment for some reasons such as ensuring the source of the public issue. Inspite of the legal notice and the assurance being given afterwards vide Annexure-5, the Company did not make any payment. It was mentioned specifically that due to typographical error, the amount was mentioned as Rs. 4,78,589/- instead of Rs. 4.28,589/- as the payment of Rs. 50,000/- was inadvertently not being mentioned.
4. The petitioner’s case is that as the opposite party from their tennor and behaviour could reveal their insolvency to make payment to the petitioner and when the liability is in excess of Rs. 500/-, then the petitioner has got no other alternative but to proceed against the opposite party for winding up the Company. It was further mentioned that under the original jurisdiction of the High Court of Bombay, the petitioner had also filed a money suit registered as Suit No. 169 of 1994 for realisation of the amount due from the opposite party, but in that suit also, the opposite party on this plea or that plea were not appearing and avoiding appearance only to defeat the claims of the petitioner. hence this company petition.
5. In this Company petition, notice was sent to the opposite party vide order dated 26.3.1996. After taking several dates, the opposite party appeared and filed counter-affidavit. In the counter-affidavit, dues of the petitioner had not been denied in so many words but they have taken technical objections such as, the legal notice as required under the Act did not conform to the claims of the petitioner as per the Company petition. It was further contended that the defendant-Company cannot be proceeded in this Company petition as already money suit had been filed against them as per admission made in the Company petition itself. It was further stated that this company petition has been filed for winding up of the opposite party only with the purpose of pressurising the opposite party to make payments.
6. On prayers being made from the side of the opposite party on various dates, time was allowed to make payments to the petitioner all his dues. No where it was stated before this Court that such claims are being disputed from the side of the opposite party. On very many dates, prayers of the opposite party had been allowed so that payments can be made and the Company may survive to run its business. But as the Court was taking lenient views, the opposite party started dilatory tactics on this plea or that plea on each and every date.
7. Mr. Khan, appearing for and on behalf of the opposite party had mentioning before this Court that the Company was going to make payment to the petitioner. Then a proposal was made by the opposite party to make payment of the admitted dues by instalments. They were trying to make payment on instalments but they were not agreeable to pay interest to be accrued in the meantime. Then such proposal was rejected by the petitioner and, accordingly, order was passed on 4.2.1997 Again Mr. Khan took time to come up with fresh proposal for payment of the admitted dues but that was also not done ultimately. Then the petition was admitted and all necessary formalities were done. A joint prayer was made once that an agreement was going to be arrived at between the parties for settlement of their claims. Time was allowed but such settlement failed due to the fault of the opposite party as was stated at the Bar from the side of the petitioner. When the case was fixed for hearing then also, adjournments were taken from the side of the opposite party on the plea of making payment but ultimately that was not done and the Court could understand that the opposite party were only buying time in the name of payment and, as such, further prayer for adjournment was rejected and the petition was heard. On the date of hearing prayer has been made by showing a letter dated 25th April, 1998 to the effect that funds for full payment of all dues have been arranged and will be cleared by 15th May, 1998, but this Court- did not take any cognizance of that letter, because it was already found that the opposite party by hook or by crook bent upon to delay the proceeding but the fact remains that this time also regarding the dues of the petitioner, no dispute has been raised from the side of the opposite party.
8. Two points have been urged from the side of the opposite party for defeating the claims of the petitioner in this Company petition for winding up as contemplated under Section 443 of the Act.
9. The first point raised is regarding its maintainability on the ground that before filing of this Company petition, the petitioner had moved original jurisdiction of the Bombay High Court for realisation of the claims for which winding up proceeding has been initiated. This point regarding maintainability of the Company petition even on the pendency of the suit has already become settled by different High Courts. There are judgments of this Court together with Karnataka and Bombay High Courts to the effect that even if a suit is pending then also the Company petition is maintainable as they play in different fields. In the Company petition, if a debtor is not in a position to pay debt/admitted dues and the amount is more than Rs. 500/-, then winding up proceeding under the Act is maintainable and even if a suit is pending, that cannot create a bar for proceeding under the Act against the Company concerned. Whether after winding up order is passed, the suit would proceed or not, that would depend upon the nature and circumstances of the case, and as per the discretion of the Company Judge but when two proceedings are on different footings although the claim may be the same, there cannot be a bar of the Company petition being maintainable even during the pendency of the suit of the claims against the Company concerned.
10. Mr. Khan, appearing for and on behalf of the opposite party has not argued much as he has realised that this point has already become a settled principle of law. Next point is raised regarding the statutory notice which had been given to the Company which revealed some more accruals, than the actual claims. In the notice sent by the lawyer, the amount was mentioned as Rs. 5,00,000/- and odd without deduction of Rs. 50,000/- which was already paid by them and that has been specifically stated in the petition that due to in advertence, that was being mentioned but in the subsequent correspondence, this amount of Rs. 50,000/- has been deducted and the claim has been made with respect to Rs. 4,28,589/-. Either in the suit or in the Company petition the amount of claims had never been disputed from the side of the Company rather from the various letters issued from time to time and even during the pendency of this proceeding, the opposite party-Company were assuring by admitting the claim that they are going to make payment but ultimately did not pay the amount. So regarding the claim which had been made from the side of the petitioner, there is no sustainable defence from the side of the opposite party to defeat this petition for winding up the Company rather the dues remained admitted and in such dues even if some discrepancies are there, as raised from the side of the opposite party, is above Rs. 500/- and from the nature it could be understood that the Company is not in a position to pay the dues of the petitioner including the other creditors.
11. It may be mentioned here that against the same Company, another Company petition is pending before this Court filed by S.K. Samanta & Co. (P) Ltd. against M/s. Hitek Industries (Bihar) Limited being C.P. No. 3 of 1997 (R) and that Company petition was also heard by this Court in which also various adjournments were made but during the course of hearing, it was argued to the effect that the claims are not admitted regarding the quantum. But the petitioner of that Company petition showed from the records the admission of claims by the opposite party. In that Company petition, an intervenor had also appeared and stated that they have got various claims against this opposite party and a suit had also been filed. Thus it appears that the opposite party Company is now not in a position to satisfy its creditors and practically does not in a position to pay all the dues to its different creditors.
12. In this view of the matter, this petition field for winding up the opposite party Company has got much force and the same is required to be allowed when it could be found that the opposite party-Company is not in a position to pay its debts, hence, there is no scope for defeating the prayer of the petitioner for winding up of the opposite party Company.
13. In the result, this Company petition is allowed and it is ordered that the opposite party Company should be wound up, The Registry shall forthwith inform the Official Liquidator and the Registrar of the Company at Patna regarding this order of winding up and in the enforcement of Section 445 of the Act. The petitioner shall file a certified copy of the order with the Registrar of the Company within thirty days from today so that the Official Liquidator shall forthwith take up the administration of the Company. The statement as required under Section 454 of the Act shall be submitted within the time limit by the Official Liquidator. The petitioner shall deposit a sum of Rs. 1,500/- (Rupees one thousand five hundred) within four weeks from today to be paid to the Official Liquidator.