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Asian Steels v/s Shree Bihari Forgings (P) Ltd.

    Co. Pet. 67 of 2010 & CAS 270-271 of 2010 & CA 208 of 2011

    Decided On, 23 April 2012

    At, High Court of Delhi


    For the Petitioner: Vageesh Sharma, Advocate. For the Respondent: Rakesh Mukhija, Anuj Arora, Advocates.

Judgment Text

1. Present winding up petition has been filed under Section 433(e) read with Sections 434 and 439 of the Companies Act, 1956 stating that the respondent is unable to pay its debts allegedly amounting to Rs. 15,06,980/-.

2. In the petition, the petitioner has relied upon a confirmation of accounts at page 41 whereby the aforesaid amount of Rs. 15,06,980/- was confirmed by the respondent as outstanding and payable as on 1st April, 2007. The petitioner has also relied upon two unpaid invoices for an amount of Rs. 12,66,148/- pertaining to goods stated to have been supplied by the petitioner to the respondent-company against which the respondent was also obliged to furnish a Form 3B under Sales Tax but failed to do so.

3. The respondent in its reply affidavit has stated that the alleged confirmation of accounts at pages 41 and 42 of the paper book is a forged and fabricated document. It is stated in the reply affidavit that the said confirmation of accounts has neither been signed by any authorized person on behalf of the respondent nor does it bear respondent company’s genuine stamp. During the course of arguments, learned Counsel for the respondent has also referred to a debit note dated 4th December, 2006 raised by the respondent upon the petitioner-company.

4. Learned Counsel for the respondent states that entire amount due and payable by the respondent to the petitioner under the invoices has been paid. He further states that the petitioner firm is not a registered firm and by virtue of Section 69 of the Partnership Act, 1932 it is barred from filing the present petition.

5. In rejoinder, learned Counsel for the petitioner states that the debit note referred to and relied upon by the respondent is a forged and fabricated document. He also states that the alleged debit note was never received by the petitioner.

6. Having heard learned Counsel for the parties, this Court is of the view that the present case involves disputed questions of fact inasmuch as both the Counsel for the parties are alleging that the documents replied upon by other party are forged and fabricated. In fact, a perusal of the contemporaneous document reveals that confirmation of accounts statement dated 1st April, 2007 has been relied upon by the petitioner for the first time in the present winding up proceedings. In the opinion of this Court if the petitioner was in possession of the aforesaid document, normal commercial prudence would require that it would refer to the same in contemporaneous document and in particular in the statutory winding up notice. However, neither in the contemporaneous letter dated 22nd July, 2007 nor in the statutory winding up notice the petitioner has relied upon the alleged confirmation of accounts statement dated 1st April, 2007. Consequently, at this stage it cannot be said that the defense set up by the respondent is a sham or moonshine.

7. In fact, the Hon’ble Supreme Court in IBA Health (India) Private Limited v. Info-Drive Systems Sdn. Bhd., I (2011) SLT 772=(2010) 10 SCC 553, has held as under:

'31. Where the company has a bona fide dispute, the petitioner cannot be regarded as a creditor of the company for the purposes of winding up. ‘Bona fide dispute’ implies the existence of a substantial ground for the dispute raised. Where the Company Court is satisfied that a debt upon which a petition is founded is a hotly contested debt and also doubtful, the Company Court should not entertain such a petition. The Company Court is expected to go into the cause of refusal by the company to pay before coming to that conclusion. The Company Court is expected to ascertain that the company’s refusal is supported by a reasonable cause or a bona fide dispute in which the dispute can only be adjudicated by a trial in a civil Court .'

8. Keep

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ing in view the aforesaid finding of fact as well as the mandate of law, the present petition and pending applications are dismissed with liberty to the petitioner to file appropriate recovery proceedings in accordance with law. 9. Needless to say, the appropriate forum would decide the matter without being influenced by any observations made by this Court. All the rights and contentions of both the parties are left open.