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Judgment
Surya Kant, J.—This petition u/s 433, 434 and 439 of the Companies Act, 1956 seeks winding-up of the respondent-Company inter-alia alleging respondent''s inability to pay admitted debt of Rs. 6,77,150/-. The debt amount pertains to the liability incurred by the respondent on account of day-to-day business transactions entered between the parties.
The respondent-Company has come up with the defence plea that it is a running unit who has never been passing through losses nor its management ever attempted to wither away its assets. The respondent besides taking the plea of poor quality of material supplied by the petitioner in breach of agreed terms and conditions, also relies upon voucher dated 07.06.2008 whereby cheque No. 847719 dated 16.06.2008 in the sum of Rs. 2,16,000/- was given to the authorized representative of the petitioner towards "full and final settlement".
It is not in dispute that on presentation, the above stated cheque was dishonoured by the ICICI Bank Limited which led the petitioner to institute a Complaint u/s 138 of the Negotiable Instruments Act, 1881. In the said criminal complaint, the Director of the petitioner Company accepted a Demand Draft dated 23.10.2010 in the sum of Rs. 2,16,000/- but this time conditionally with a stipulation that the above stated amount shall be deducted from the payable claim pending in this winding-up petition.
I have heard learned counsel for the parties and gone through the record.
Since the petitioner-Company at one point of time agreed to receive Rs. 2,16,000/- towards full and final settlement of its claim, which was actually offered by the respondent by way of a cheque though subsequently dishonoured due to stoppage of payment by it, the claim of the petitioner beyond Rs. 2,16,000/- does not appear to be un-justified. At the same time, it can not be over-looked that the agreed amount of Rs. 2,16,000/- was paid to the petitioner after a period of more than two years, i.e., in October, 2010 only when the petitioner resorted to action under the Negotiable Instruments Act.
In the facts and circumstances of the case, I am of the considered view that the ends of justice shall be fully met if the respondent is directed to pay Rs. 50,000/- towards litigation expenses incurred by the petitioner and interest @12% per annum w.e.f. 01.06.2008 till 31.10.2010 on the sum of Rs. 2,16,000/-. Ordered accordingly. Counsel for the respondent undertakes to pay the above stated amount to the petitioner within one month from the date a certified copy of this order is received.
The said amount shall be sent to the petitioner through a Demand Draft. Disposed of. Dasti.