Gazala Engineering Pvt. Ltd. vs Tyco Fire and Security India Pvt. Ltd.

A.S. Bopanna, J.—The petitioner is before this Court seeking that an order of winding up be passed against the respondent-company.

The petitioner and the respondent have entered into a contract whereunder the work of construction of the sewage disposal system was entrusted to the petitioner under the work order dated 06.03.2007. The cost of the project was in a sum of Rs. 85,46,750.61 which on erection would amount to a sum of Rs. 1,12,94,769.15. The petitioner is stated to have carried out the work order after obtaining loan from the Bank of Maharashtra, Malad (W), Mumbai, whereunder a cash credit facility for the sum of Rs. 34,00,000/- was given. In respect of the amount due and payable by the respondent to the petitioner, on finalizing the accounts, a meeting was held between the parties and the discussion held therein was recorded. The net amount due and payable by the respondent to the petitioner was arrived at Rs. 34,83,215/-. It is the said amount which in fact is claimed as due and payable from the respondent and since the said amount has not been paid, the petitioner has instituted this petition.

Learned counsel for the petitioner in that regard on referring to the minutes of meeting at document No. 2 has also referred to the statutory notice dated 04.05.2011. The reply dated 05.07.2011 is also referred to indicate that the amount due and payable at Rs. 34,83,215/- has not been disputed by the respondent. In that view, it is contended that the amount is due and payable, the same has also been admitted and as such, it would have to be deemed that the respondents are unable to pay their debts. Therefore, the respondent-company is liable to be wound up is the contention.

The respondent has filed the objection statement. Though details have been referred to therein, it is unnecessary to advert to all aspects of the matter since the respondents in any event do not dispute that a sum of Rs. 34,83,215/- was payable by the respondent to the petitioner. However, it is pointed out that the Bank of Maharashtra from whom the petitioner had availed the cash credit facility had initiated proceedings before the Debts Recovery Tribunal (''DRT'' for short) at Mumbai in O.A. No. 157/2010. It is contended that to the said proceedings, the respondent herein has also been impleaded as defendant No. 8. Further, by filing an application in the said proceedings, the petitioner had also sought for restraint order against the respondent herein who is defendant No. 8 therein not to disburse the amount to defendant No. 1 who is the petitioner herein. The said order has been granted by the DRT on 17.02.2012.

In that light, it is pointed out that though the said amount is due, they are not in a position to discharge the same to the petitioner and at the same time, the petitioner has also not taken steps to see that the said amount is paid to the Bank so that the respondents could be absolved of their liability. In that view, it is contended that the instant petition for winding up would not be maintainable.

In the light of the rival contentions, even though the learned counsel for the petitioner has relied on the decision in the case of Maruti Udyog Limited -vs.- Hindusthan Photo Film Manufacturing Co. Ltd. reported in 2001 Company Cases Volume 103 and in the case of Rydak Syndicate Ltd. Vs. Roshanlal Agarwal, , the said decisions would not be applicable to the present facts wherein the facts which are require to be noticed to arrive at a conclusion are as to whether the respondent-company is unable to pay its debts despite the amount being admitted as due and payable to the petitioner.

In this regard, the very minutes of the meeting referred to by the learned counsel for the petitioner, on a close perusal would indicate that though the said amount of Rs. 34,83,215/- was admitted as the net amount due and payable by the respondent to the petitioner, in the very meeting it is recorded that the respondents herein will be in a position to release the payment to the petitioner on getting ''no objection certificate'' from the Bank of Maharashtra which would be relevant for the purpose of the settlement of claim between the petitioner and the respondent.

Therefore, if this aspect is kept in view and the fact that the Bank of Maharashtra has initiated proceedings against both the petitioner and the respondent before the DRT in O.A. No. 157/2010 and in the said proceedings, the Bank of Maharashtra has obtained an order of restraint against the respondent herein against paying the amount to the petitioner would disclose that the defence as put forth by the respondents herein is a bona fide one and it cannot be considered that the respondent-company are unable to pay their debts. On the other hand, they have been prevented in law against paying the said amount to the petitioner. Therefore, the prayer as made in the petition to windup the respondent-company would not be maintainable in the instant petition and the petitioner would have to resort to appropriate remedies in accordance with law for adjustment of the said amount by seeking payment of the same to the Bank of Maharashtra so that their liabilities to the Bank stands reduced to the said extent or seek for such necessary orders in the proceedings before the DRT, if they are to receive the amount from the respondents based on such directions.

With such liberty to the petitioner, the petition stands disposed of.