{"id":95250,"date":"1999-02-08T00:00:00","date_gmt":"1999-02-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jyoti-limited-vs-international-pumps-projects-on-8-february-1999"},"modified":"2016-02-08T07:49:11","modified_gmt":"2016-02-08T02:19:11","slug":"jyoti-limited-vs-international-pumps-projects-on-8-february-1999","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jyoti-limited-vs-international-pumps-projects-on-8-february-1999","title":{"rendered":"Jyoti Limited vs International Pumps &amp; Projects &#8230; on 8 February, 1999"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">Jyoti Limited vs International Pumps &amp; Projects &#8230; on 8 February, 1999<\/div>\n<div class=\"doc_citations\">Equivalent citations: 2001 103 CompCas 103 Delhi, 1999 (49) DRJ 145, ILR 1999 Delhi 362<\/div>\n<div class=\"doc_author\">Author: U Mehra<\/div>\n<div class=\"doc_bench\">Bench: U Mehra<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p>Usha Mehra, J.<\/p>\n<p>1. M\/s. Jyoti Limited filed a petition under Sections 433(e), 434 and 439<br \/>\nof  the  Indian Companies Act, 1956 (in short the Act) seeking  winding  up order  against M\/s. International Pumps and Projects Ltd., inter  alia,  on<br \/>\nthe ground that the respondent is indebted and has not paid the debt due to the petitioner.\n<\/p>\n<p>2.   That facts as alleged in the petition are that the respondent placed a purchase  order on the petitioner pertaining to the specified Switch  Board<br \/>\nvide letter dated 10th July, 1995. The transaction emanated from  agreement for  the  Kharagpur Augmentation Water Supply Scheme  belonging  to  Public Health  Engineering  Department, Government of West Bengal  Undertaking  at Keshpal  Augmentation Water Supply Scheme Pumping Station, Midnapore,  West Bengal.  The petitioner had also asked for Mobilisation Advance of 10%  but no  reply  was  given  by the  respondent.  According  to  the  petitioner,<br \/>\nrespondent&#8217;s order was kept in abeyance for want of required  clarification regarding  terms of payment. Request of the respondent to make  payment  by post-dated cheque was declined by the petitioner. Petitioner was  surprised when the respondent informed to defer the manufacturing of panel. The goods<br \/>\nmanufactured by the petitioner were inspected by the Inspecting Team of the respondent  and the goods were found in order. The material was  despatched on   15th  June,  1997.  Thereafter  revised  sight   draft   incorporating invoice\/G.C.  number was sent to the respondent for his acceptance and  co-acceptance  of  his bank. But the sight draft was not accepted by  the  respondents bankers. Documents were, therefore, discounted by the bankers  of the  petitioner. Respondent did not release payment inspite  of  reminders. That the respondent had no intention to pay for the switch gears. Thus, the amount  due from the respondent as claimed by the petitioner works  out  to Rs.  49,08,800\/-  towards price of the switch gears. Respondent  by  letter dated  9th  January, 1998 admitted its liability. Petitioner filed  a  writ petition  in  Calcutta  High Court. The same was  dismissed  being  between private parties. Legal notice demanding payment of the debt due was  served<br \/>\nbut inspite of that no payment made, hence the petition.\n<\/p>\n<p>3.   On the basis of the averments made in this petition, notice was issued to  the respondent. In the meantime, respondent was restrained from  transferring,  alienating, encumbering or parting with possession of the  assets of the respondent Company.\n<\/p>\n<p>4.   That on the receipt of the restrain orders, the respondent filed  this application  alleging  therein that the petitioner has  concealed  material facts and mis-represented before this Court. Alleged concealed facts as per the petitioner are: (i) that the petitioner and the respondent were  having business  dealings.  They were doing business in many ways  in  respect  of various related items. (ii) That the respondent had to receive a sum of Rs. 11,56,271.55 paise from the petitioner on account of business dealing which the respondent had with the petitioner. (iii) That the petitioner concealed<br \/>\nand mis-represented about the decision of the Calcutta High Court by virtue of  which its writ petition was dismissed. Petitioner has alleged that  his petition  was  dismissed on the ground that the dispute was  inter  se  the private  parties.  Whereas  in  fact  vide  order  dated  9th  April,  1998 petitioner&#8217;s  petition was dismissed thereby specifically holding that  the petition  raises  dispute of civil nature in relation to  their  respective obligations,  hence  civil  suit was the proper remedy. In  view  of  these observation,  the petitioner ought not to have filed the present  petition.\n<\/p>\n<p>Since  there existed disputed questions of fact which cannot be  gone  into under  the Act, hence petition was not maintainable. (iv)  Petitioner  concealed the factum of his preferring a criminal complaint against the Managing<br \/>\nDirector of the respondent wherein he stated the facts which are  contrary  to the one stated herein. (v) That factum of negotiation started  in July,  1998  and the settlement arrived at between the petitioner  and  the respondent has been concealed. That pursuance to the negotiation a  meeting was held at Vodadara on 24th August, 1998 where settlement was arrived at.\n<\/p>\n<p>5.   That  as per the said settlement, respondent Company agreed to  pay  a sum  of Rs. 22.81 lakhs in full and final settlement of the claims  of  the petitioner  Company in respect of the purchase order pertaining  to  Switch Gears.  As part performance of the said agreement, the  respondent  Company paid  a  sum of Rs. 12.81 lakhs to the petitioner Company  against  receipt dated  29th  August, 1998. The amount was paid by demand draft  No.  727549 dated  28th  August, 1998, which was duly accepted by the  petitioner.  The first  instalment  as  per the said agreement was due and  payable  on  5th<br \/>\nSeptember, 1998, however, the respondent Company paid the amount in advance on 28th August, 1998 thereby complying the terms of the said agreement.  It was  the term of that agreement that after receipt of the first  instalment the  petitioner would give &#8216;C&#8217; Form and ST-1 Forms to the  respondent.  The petitioner  was to call another meeting for resolving the alternator  manufacturing and marketing agreement and the amount payable to the  respondent on account of PHED, Jodhpur was to be quantified. The petitioner Company by suppressing of all these facts filed this petition.\n<\/p>\n<p>6.   Notice of this application was served on the petitioner through  Counsel.  Heard  Dr. A.M. Singhvi, Senior Advocate for the petitioner  and  Mr. Sanjiv Behl for the respondent\/applicant.\n<\/p>\n<p>7.   That  perusal of this petition shows the petitioner had concealed  and suppressed  material facts, namely: (i) that the Calcutta High  Court  dismissed  his writ petition vide order dated 9th April, 1998 holding that  it being  a dispute of civil nature between the parties writ petition was  not maintainable.  (ii) The filing of the criminal complaint has also not  been mentioned  in the petition. (iii) The more important aspect of the case  is that of the settlement arrived at between the parties which was as a consequence  to  the meeting held on 24th August, 1998 at Vodadara. As  per  the said  settlement, it was agreed between the parties that if the  respondent pays  a sum of Rs. 22.81 lakhs it would be in full and final ettlement  of petitioner&#8217;s claim qua the supply of these switch gears. This fact has  not even been whispered in the petition. The petition was filed on 27th August, 1998, by which time, settlement had already been arrived at. It was  incumbent  on the petitioner to disclose the factum of that settlement  but  the petitioner  by  concealing  the same misled the Court in  order  to  obtain discretionary  relief  of interim injunction. The  petitioner  has  already obtained  discretionary  relief in its favour by concealing the  factum  of settlement.  It  was not only that some settlement was arrived at  but  the said  agreement  was  in  fact acted upon when respondent  paid  a  sum  of Rs.12.81 lakhs to the petitioner Company against receipt dated 29th August, 1998.  The  first instalment as per the agreement amounting  to  Rs.  12.81 lakhs  was to be paid by 5th September, 1998. However, the  respondent  instead of waiting till 5th September, 1999 paid the first instalment on 29th August,  1998 which was duly accepted by the petitioner herein. This  petitioner instead of waiting till 5th September i.e. the last date of  payment of the first instalment filed this petition on 27th August, 1998. The  case came  up before this Court on 9th September, 1998 by which date  the  petitioner had already received the amount of Rs. 12.81 lakhs from the respondent  Company pursuance to the said agreement. This fact was not brought  to the  notice of this Court on 9th September, 1998 when the case came up  for the  first  time.  From the above facts, it is clear  that  the  petitioner Company has intentionally suppressed the above said material facts and misrepresented before this Court in order to obtain favourable orders.\n<\/p>\n<p>8.   The  contention of Dr. A.M. Singhvi that non-mentioning of the  factum of  settlement  was  due to communication gap. It was  not  an  intentional suppression of material facts. The error crept in because of  communication gap and lack of proper instructions. The fact that there was settlement due to  error  could not be mentioned. As regards implementation  of  the  said settlement whereby petitioner received Rs. 12.81 lakhs, that amount had not been received when the petition was filed. I find no force in these submissions of Dr. Singhvi. The factum of settlement was a very material fact  in the  circumstances of this case. The said settlement envisaged  payment  of Rs. 22.81 lakhs in full and final settlement of the claim of this petitioner  of  having supplied switch gear in respect of purchase order  dated  10 July,  1995. The first instalment of Rs. 12.81 lakhs was to be paid by  the respondent  by 5th September, 1998. This fact itself was very  material  to<br \/>\ndetermine  the liability and debt position of the respondent under  Section 433(e)  of  the Act. The petitioner, however, in the petition  has  alleged that the respondent owe it a sum of Rs. 58,66,016\/- as on 17th August, 1998 beside  interest. Thus according to this petition, the respondent  was  indebted to the tune of Rs. 58,66,016\/-. Whereas per the agreement which  had been  concealed the respondent was to pay in all a sum of Rs. 22.81  lakhs. Out of which the respondent did pay the first instalment of Rs. 12.81 lakhs much before 5th September, 1998 i.e. much before the first date of hearing. Thus it is apparent that the debt was not Rs. 58,66,016\/- as alleged in the petition.  It  is not possible to accept the argument of Dr.  Singhvi  that mention  of settlement was omitted due to communication gap. It  cannot  be said  mere omission or an error or that there was a communication gap.  The petitioner has tried to mislead this Court by suppressing material  facts. The petition is, therefore, liable to be dismissed. The Company Petition is accordingly dismissed with costs of Rs. 5,000\/-.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court Jyoti Limited vs International Pumps &amp; Projects &#8230; on 8 February, 1999 Equivalent citations: 2001 103 CompCas 103 Delhi, 1999 (49) DRJ 145, ILR 1999 Delhi 362 Author: U Mehra Bench: U Mehra JUDGMENT Usha Mehra, J. 1. M\/s. Jyoti Limited filed a petition under Sections 433(e), 434 and 439 of the [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-95250","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Jyoti Limited vs International Pumps &amp; Projects ... on 8 February, 1999 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jyoti-limited-vs-international-pumps-projects-on-8-february-1999\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jyoti Limited vs International Pumps &amp; 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