Golfera Foods (India) Pvt. Ltd. vs Asha Nath Warehousing Pvt. Ltd.

S. Muralidhar, J.—This petition u/s 433 read with Section 434 of the Companies Act, 1956 (''Act'') has been filed by the Petitioner, Golfera Foods (India) Private Limited, against the Respondent, Asha Nath Warehousing Private Limited, praying that the Respondent be wound up on the ground that it is unable to make payment to the Petitioner. The background to the present petition is that on 1st April, 2007 the Respondent entered into an agreement with the Petitioner whereby the Respondent undertook to provide various services to the Petitioner for the use of the warehouses, including officer ''for storage and distribution of food products''. It is stated that under the said agreement the Respondent was under a contractual obligation to store the goods in the warehouses and also to maintain the company books and records. It is stated that between 26th August and 21st September, 2009 goods were supplied iii the sum of Rs. 7,72,049.45 to the Respondent for which the invoices were raised, the details of which have been set out in para 7 of the reply. It is further stated that since the Respondent failed to make payment of the said invoices, a statutory notice dated 27th December, 2010 was sent by the Petitioner calling upon the Respondent to pay a sum of Rs. 7,72,049.45 together with interest @ 15% per annum. It is stated that despite receiving the said notice, no reply was given nor payment was made by the Respondent. It is stated that since the Respondent has not disputed the claim of the Petitioner, the petition should be admitted and the Respondent wound up.

Pursuant to the notice issued by this Court in the present petition on 1st September, 2011, the Respondent has filed a reply to which the Petitioner has also filed a rejoinder.

The stand taken by the Respondent in its reply is that it is not liable to pay any amount to the Petitioner. On the other hand, the Respondent claims that it has to recover an amount of Rs. 27 lakh from the Petitioner. It is stated that the Respondent has paid the sum of Rs. 7,72,049.45 to the Petitioner on various dates in cash for which Petitioner had executed receipts.? Enclosed ns Annexure-3 (collectively) to the reply are copies of the various receipts purportedly executed by the Petitioner in favour of the Respondent towards such payment. It is categorically asserted In the Respondent that ''the accounts of the Petitioner company are also showing the receipt of whole amount of Rs. 7,72,049.45. Accordingly it is claimed that nothing is due to the Petitioner.

Additionally, it is stated that for recovery of Rs. 27 lakhs from the Petitioner, the Respondent has filed CS (OS) No. 2881 of 2011 in this Court in which on 18th December 2012 the following issues were framed based on the pleading of the parties:

Whether the Plaintiff made payment of Rs. 7,72,049.45 to the Defendant, as alleged in the plaint?--OPP

Whether the Plaintiff defaulted in maintaining accounts, as alleged in the written statement and, if so, to what effect?--OPD

Whether, to what amount, the Plaintiff is entitled from Defendant as principal sum?--OPP

Whether the Plaintiff is entitled to interest and, if so, at what rate and to what amount?--OPP

It is staled that the suit is now listed for evidence on 12th February, 2013.

In response to the specific query to the learned Counsel for the Petitioner as to the stand of the Petitioner in relation to the receipts produced by the Respondent, Mr. Shiv K. Suri, learned Counsel for the Petitioner refers to para 2(a)(iii) [internal page 3] of the rejoinder in which it is stated as under:

(iii) That the contents of para 1(d) are correct to the extent that Respondent company had purchased some goods amounting to Rs. 7,72,049.45 (Rupees seven lakh seventy-two thousand forty-nine and forty-five paise) but it is wrong and vehemently denied that the Respondent company had made the payment of the said goods, which they had purchased from the Petitioner company. It is humbly submitted that as per the agreement dated 1st April, 2007, it was agreed between the parties that the Respondent company was under contractual obligation to store the goods in the warehouses and also maintain Petitioner accounting records. The Respondent had an extremely unfair advantage over Petitioner, since they held the stocks, invoiced goods, collected payments over goods and account of Golfera. Further more, they misused the collected amounts by selling Golfera products to themselves rather than transferring money to Golfera Bank account. The Annexure attached to the counter affidavit with respect to the statement of account and various receipts executed by the Petitioner company is factually executed by the Respondent itself under the authority given by the Petitioner company. The said payment was never been transferred to Golfera account. Most interestingly, the deponent would like to point out that, most of the alleged payments made by the Respondent to the Petitioner were through cash, which is clear from the account details placed by the Respondent before this Hon''ble Court. Whereas it was supposed to be made through cheque, but here in the present case it is not. The Respondent deliberately shown cash payments in para ''d'' of the counter affidavit dated 2nd December, 2011, and in the Annexure attached therewith to divert the attention of this Hon''ble Court by showing payments made to Golfera. A copy of the statement showing the amount due on the Petitioner by the Respondent company is marked and annexed as Exhibit ''A''.

Further in para 2(a)(iv) of the rejoinder, it is stated by the Petitioner that after 30th September, 2000 the Respondent failed to provide the Petitioner with the accounting reports and record of goods which were still in possession of the Respondent. Mr. Suri added that several of the copies of the receipts enclosed with the reply were unsigned and did not refer to the invoices in respect of which a sum of Rs. 7,72,049.45 was claimed.

Learned Counsel for the Respondent on the other hand stated that some of the unsigned receipts have been produced in respect of certain typed copies have been enclosed and that in any event evidence could have to be led in respect of such receipts. It is maintained that the total payment under the receipts satisfied the entire claim of the Petitioner.

On the basis of the above pleadings, it is not possible to accept the submission of learned Counsel for the Petitioner that the claim against the Respondent is undisputed or that the defence to the present petition by the Respondent is a sham one, unsubstantiated by documents.

This Court is not called upon at this stage to examine the correctness of the above pleas. Further, one of the issues framed in the suit pertains to this very issue and evidence would be led by the parties in support of their respective pleas.

For the aforesaid reasons, this Court holds that the Petitioner has not been able to make out a case for winding up of the Respondent u/s 433 read with Section 434 of the Act. This order however will not prejudice the case of either or the parties in the aforesaid civil suit pending in this Court. The petition is dismissed but with no order as to costs.