JUDGMENT
Swatanter Kumar, J.
1. In reply to the show cause notice as to why petition be not admitted, M/s. Appenzell Petroleum Products Limited filed a reply refuting the averments made in this company petition under sections 433, 434 and 439 of the Companies Act, 1956. After considering the pleadings of the parties and hearing the learned counsel for the parties at some length, vide order, dated 23 April, 1998, the Company Court had admitted the petition for winding up and directed the publication of the notice in accordance with law. In order to avoid unnecessary repetition of facts, it will be appropriate to recapitulate the order, dated 23 April, 1998, which reads as under :
“M/s. Verma Gas Agency has filed this petition under sections 433, 434 and 439 of the Companies Act, 1956 praying that M/s. Appenzell Petroleum Products Limited (hereinafter referred to as the respondent company) be ordered to be wound up. It is stated that vide letter, dated 12.5.1993/26.6.1994 respondent company had appointed the petitioner as a dealer of LPG for the area of Mahamajra and part of Panchkula. The copy of this letter has been placed on record as Annexure 5. As per the terms and conditions, the petitioner deposited a sum of Rs. 1,00,000 by way of security on 11.5.1993 by two different bank drafts. The petitioner claims to have further deposited a sum of Rs. 1,14,500 again by bank draft for supplying the gas cylinders and regulators, etc. in terms of the agreement entered into between the parties. That the petitioner deposited still other sums for the supply of booking forms and in order to fulfil the other requirements. In total, the petitioner had deposited a sum of Rs. 2,68,500; because the agency could not work and the petitioner surrendered the agency. Out of the total amounts deposited, a sum of Rs. 1,14,500 was paid by the respondent company to the petitioner on 20.9.1994. However, this cheque was dishonoured. In addition to this some money of the customers was also paid. The petitioner has been claiming and requesting the respondent company for payment of its dues and for refunding the security deposited by them. The letters were received by the respondent but no amounts were paid. This conduct of the respondent company resulted into the issuance of the notice under section 434 of the Companies Act on 3.2.1997 asking for the refund of the money. The notice was served and failure on the part of the respondent company to pay the amount resulted into the filing of the present petition. Upon notice reply was filed by the respondent company. The fact that the petitioner was appointed as a dealer was disputed. It was admitted the security deposit and other amounts were deposited by the petitioner but the amounts indicated in the various paragraphs of the petition were not admitted and their correctness was denied. It is stated that the petitioner had deposited a sum of Rs. 1,14,500 only towards security and for the supply of cylinders and regulators which were supplied and it is stated that the amounts have been charged by the petitioner from the customers and as such no claim is tenable. Claim for the refund of Rs. 2,48,817 was denied and it was stated that in the facts of the present case the petitioner cannot take advantage of the dishonouring of the cheque. In the replication filed facts of the main petition were reiterated. It was stated that the payments have been made by bank drafts and the receipts have been placed on record and it was specifically denied that any cylinder or regulators are received by them and claim for refund of the entire amount was reiterated. It is clear from Annexures P-1 to P-3 that the petitioner had paid a sum of Rs. 2,68,500 for which receipts were issued as reflected in the Annexures. The amounts which have been stated in the petition are duly supported by receipts and as such their payment, prima facie, cannot be disputed. In support of the claim of refund the petitioner has relied upon Annexure P-4 which is the cheque issued by the respondent company. This cheque was dishonoured, even this fact is not disputed. The petitioner has surrendered the dealership – is also not disputed. On the face of these admitted facts the controversy for determination is a very limited one, i.e., whether the regulators and cylinder as alleged in the written statement were supplied to the petitioner or not. The petitioner has specifically denied receipt of any cylinder, regulators or other material from the respondent company. The burden to prove this fact at least prima facie lies upon the respondent company. The respondent company has not placed any receipt or ancillary document which could lead to the conclusion that the averments made by the respondent company are true or correct. In fact, no document whatsoever has been filed on record and no details thereof have been given in the reply filed. Another way to look at the bona fides of the stand taken by the respondent company is that, if the supplies of cylinders and regulators were made, then where was the occasion for the respondent company to issue the cheque (Annexure P-4), admittedly, after the agency has been surrendered by the petitioner. This shows the complete lack of bona fides in the defence put forward by the respondent company. The allegations made by the respondents in the reply are not even supported by the terms and conditions contained in the letter of appointment of dealership (Annexure P-8). The claim was raised by the petitioner, vide letter, dated 5.8.1994 for refund of this money and a categorical assertion was made in the said letter that no regulators or cylinders were delivered to them. This was reiterated in the letter of 7.9.1994. The petitioner company while serving notice under section 434 of the Companies Act, the said notice inspite of service remained unreplied, and it is for the first time that the respondent company alleged that they had given the supply of cylinders and regulators to the petitioners. The cumulative effect of the aforestated discussion is that the respondent company owed the aforestated amounts to the petitioner which it has not been able to pay inspite of due opportunity and notice. The defence raised by the respondents before the court is nothing but a moon-shine stand and lacks bona fides. I have no hesitation in coming to the conclusion at this stage that the respondent company has failed to pay and is unable to clear its liability. Consequently, this petition is admitted. Notice be published in ‘The Tribune’ and Jansatta. Notice shall also published in the Official Gazette of Chandigarh. The gazette notification and be public notice shall give 14 days clear period prior to the next date of hearing before this court.
List this matter for hearing on 2.7.1998.”
2. Learned counsel for the petitioner had filed copy of the notice published in the ‘The Tribune’ and ‘Jansatta’ dated 7.11.1998 alongwith the Official Gazette issued by the Chandigarh Administration, dated 26 November, 1998. These documents were filed alongwith the affidavit of the counsel for the petitioner. In response thereto, the respondent company was not able to show any reason as to why the natural consequences on admission of the winding up petition be not followed in the present case. No further affidavit, document or meaningful arguments were addressed to avoid the order of winding up.
3. From the above quoted order, it is clear that the court had taken into consideration the entire record of the case alongwith the affidavits filed by the parties. The respondent company has not been able to discharge the onus showing that the admitted amount due was adjusted by way of supply of regulators and cylinders to the petitioner. In the normal course of business, the respondent company is expected to produce the documentary evidence in support of such contention. An act which is required to be done in a particular manner in the normal event of things and normally be done in that manner. In other words, such restricted and controlled items like regulators and cylinders are given and taken against receipt of requisite transfer vouchers. The respondent company which was dealing with such items is required to maintain such books. No record of the respondent company has been produced at any stage to show the satisfaction of the amount due as claimed by the petitioner. The court would be justified in drawing adverse inference against the respondent company for non-production of material documents on record.
4. At this stage, it will be appropriate to make reference to the observations of Hon’ble Supreme Court in the case of S. P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs and others (1995) 1 PLR 293 would be appropriate.
“… We have no hesitation to say that a person whose case is based on false-hood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation. Non-production and even non-mentioning of the release deed at the trial is tantamount to playing fraud on the court.”
5. This principle was followed by this court and discussed in some elucidation in the case of Gurvinder Singh v. Harjit Kaur and another Civil Revision No. 4075 of 1997 decided on 26.3.1998.
“…. It is expected from every litigant irrespective of the fact whether he is seeking relief from the court or not that he would state true and correct facts. There is not only implied, but specific obligation upon every party who approaches the court to verify the facts true to the knowledge and belief of the party, specially, in the cases of present kind where the court has to take prima facie view keeping in mind the urgency of the matter regarding grant or refusal of maintenance. Primarily the onus has to be discharged by respective parties in support of the averments made in the application or reply, as the case may be. Concept of heavy burden of proof would be applicable during the trial where the parties have the liberty to lead oral and documentary evidence in support of their case. The court would be well within its jurisdiction to draw adverse inference against a party who actually or (sic) attempts to withhold the best evidence and true facts from the court with intention to frustrate the claim of others at this preliminary stage of proceedings …..”
6. The cheque issued by the respondent company was admittedly dishonoured on presentation. The onus to explain this was on the respondent company. However, no plausible or reasonable explanation has been rendered by the respondent company in that regard. The dispute raised lacks bona fides and is primarily intended to defraud creditors.
7. For the aforestated reasons, I am of the firm view that the respondent company is unable to pay its debts, and in fact, is intentionally avoiding to pay the lawfully due amounts to the petitioner, that too without any sufficient and bona fide cause.
8. Consequently, the Company Petition No. 15 of 1997 is accepted and allowed with costs, which are assessed at Rs. 5,000. The respondent company M/s. Appenzell Petroleum Products Limited with its registered office at SCO 487-488, Sector 35-C, Chandigarh, is ordered to be wound up. The official liquidator attached to this court is hereby appointed as liquidator of the respondent company. He shall take over the record, assets and properties of the respondent company forthwith and shall deal with them in accordance with law, subject to the orders of the court.
9. The order of winding up be published in the ‘Indian Express’, ‘Jansatta’ and the Official Gazette of the Chandigarh Administration.