- (1.) This is a petition under Section 439 read with Section 433 and Section 434 of the Companies Act, 1956 (for short "the Act").
(2.) Brief facts : The respondent-company had been purchasing steel ingots and flats of various specifications from the petitioner. A running account was maintained. A sum of Rs. 2,38,810 became due from the respondent which was not paid after service of statutory notice. The petitioner filed C.P. 166 of 1983 for winding up of the respondent-company for non-payment of the debt due. The petition was disposed of by the learned Company Judge with the following observations :- "The parties have entered into a compromise. In view of the same the learned counsel for the petitioner prays that this petition may be dismissed as withdrawn. I order accordingly. It is further prayed that the whole of the amount compromised has not been paid so far, so the petitioner may be allowed permission to file a fresh petition if the amount is not paid according to the compromise. The prayer is allowed and the petition is dismissed with permission to file a fresh petition in case the compromise falls through." The respondent-company paid a sum of Rs. 35,000/- in August, 1985 and a sum of Rs. 10,000/- by cheque dated July 13, 1985. All the payments made by the respondent were duly credited in its accounts and after accounting of these payments, a sum of Rs. 2,25,886/- is due from the respondent. The petitioner also filed a statement of accounts of the respondent. The petitioner claimed interest at the rate of 18 per cent per annum with effect from April 1, 1986. Thus, the total amount inclusive of interest comes to Rs. 3,09,636, which is payable by the respondent. The respondent controverted the plea of the petitioner and pleaded that C.P. 166 of 1983 was disposed of after a settlement was arrived at between the parties and according to the settlement, Rs. 2,70,300 stood paid out of the total amount payable which comes to Rs. 2,38,795 and thus the respondent-company is liable to pay Rs. 68,495.50. It was further pleaded that the petitioner company supplied some material which was found defective and was accepted as scrap. It was also pleaded that the petitioner-company is liable to pay Rs. 23,527.25 to the sister concern of the respondent-company, namely M/s Jinda Ally Cast Pvt. Ltd.
(3.) It is well settled that a winding up petition is not legitimate means of seeking to enforce payment of debt which is bona fide disputed. If the debt is bona fide disputed there cannot be neglect to pay within the meaning of section 433(1)(a) of the Act. The principles on which the Company Court acts are : (1) that the defence of the company is in good faith and one of substance; (2) the defence is likely to succeed in point of law and (3) the company produced prima facie proof of the facts on which defence depends. The petitioner has led prime facie proof that the amount claimed in the petition is due from the respondent. The statement of accounts appended as Annexure P. 3 to the petition vouchsafed the assertion made in the petition. The correctness of statement of accounts, which is a part and parcel of the petition, is not doubted in the written statement filed by the respondents. The petitioner served statutory notice. The respondent sent reply to it. The demand made through the statutory notice was not disputed, but the respondent company suggested that the petitioner may allow it time to make payment in easy terms as it was facing little financial difficulties. The defence which is now sought to be taken up appears to be an after thought. The respondent-company would not have hesitated in informing the petitioner-company that the amount demanded is not due and the payments now alleged in the written statement were not alluded to in the reply to the statutory notice. As observed earlier, the petitioner will not be entitled to an order of winding up if the debt is bona fide disputed and defence is substantial one and prima facie proof is adduced in support of the facts on which the defence depends. In the present case, the respondent-company has miserably failed to do so. No material has been placed on record to prima facie substantiate the plea raised in the written statement. An extract from the ledger could have been produced by the respondent-company to prima facie establish its defence. The respondent-company is duly incorporated under the Companies Act. A balance sheet has to be prepared every year and approved in the Annual General Meeting of the company. The balance sheet contains a complete picture of the assets and liabilities of the company. It would have corroborated the version of the respondent-company. Failure to produce extract from the ledger and the balance sheet leaves me to draw an inference that the defence raised is not one of substance. The assertions made in the written statement cannot attain the character of fact proved. I am satisfied that the company has failed to discharge the obligation that the debt is bona fide disputed and the defence is substantial one. The petitioner has prima facie established that the debt is due from the respondent-company and it is not bona fide disputed by the respondent-company. The petitioner has claimed interest at the rate of 18 per cent per annum on the principal amount from the date the debt became due, with effect from April 1, 1986. The petitioner has not led any proof in support of the plea that it is entitled to interest at the rate demanded. A seller is entitled to interest on the price of goods supplied from the date of delivery of goods up to the date of payment even in the absence of any contract for payment of interest as enjoined by section 61 of the Sales of Goods Act. Sub-section (2) of section 61 of that Act applies to all cases where there is breach of contract. It gives wide discretion to the Court to award interest at such rate as it thinks fit on the amount of unpaid price of the goods. In the circumstances, I think it will be just and proper to award interest at the rate of 12 per cent per annum on the principal amount due with effect from April 1, 1986 till realization. The respondent is directed to pay principal amount of Rs. 2,25,886 with interest at the rate of 12 per cent annum with effect from April 1, 1986 by August 14, 1989, failing which the company petition will be advertised by an insertion in the Daily Tribune, Dainik Tribune and the Haryana Government Gazette.;