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2017 Supreme(Cal) 608
IN THE HIGH COURT OF CALCUTTA
I.P. Mukerji, J.
Calcast Ferrous Ltd. - Appellant
Vs.
SRC Steels P. Ltd. - Respondent
C.P. No. 419 of 2014
Decided On : 30-01-2017
Advocate Appeared:
For the Appellant : Abhrajit Mitra, Jishnu Choudhury, Satadeep Bhattacharyya, Sagnik Basu, Ratul Das, Nidhi Bahal
For the Respondents: Surajit Nath Mitra, Sagar Bandyopadhyay, Niladri Banerjee
Prima facie proof of claim in a winding up application and the weakness of the respondent's defense can lead to the admission of the application.
Headnote:
Winding Up - Companies Act - Sections 433, 434, 439
Fact of the Case:
The petitioner sought winding up of the respondent-company for failure to pay outstanding debts amounting to Rs. 1,58,47,732. The respondent disputed the claim, alleging no sale or delivery of goods and asserting a loan advanced to the petitioner.
Finding of the Court:
The court found the respondent's defense to be contradictory, unbelievable, and dishonest, and held that the petitioner had prima facie proved its claim for the outstanding amount, along with entitlement to interest at the rate of 8 per cent.
Issues: Dispute over outstanding debts, existence of sale and delivery of goods, and the nature of alleged loan advanced by the respondent.
Ratio Decidendi: The court admitted the winding up application as the petitioner had proven its case in a summary manner, and the respondent's defense was deemed weak, contradictory, and dishonest.
Final Decision: The winding up application was formally admitted, and the petitioner was directed to advertise the petition and list the application for further direction.
I.P. Mukerji, J.
1. This is an application for winding up of the respondent-company, on the ground that it is unable to pay its debts. It is appearing before me for admission, after exchange of affidavits. By an order dated July 13, 2011 passed by this court the steel division of SRC Udyog Ltd., was demerged from this company and merged with the petitioner. The demerger was effective from April 1, 2010. As a result of this demerger the petitioner acquired all the assets, liabilities and actionable claims of SRC Udyog Ltd.
2. SRC Udyog Ltd., had from time to time supplied goods like Plate cut from HR Coil to the company, under 15 invoices between 2009-10 and 2010-11. The value of the invoices was Rs. 1,88,47,732. According to the petitioner, between June 10, 2013 and July 27, 2013 the company made part payments amounting to Rs. 30 lakhs by 4 cheques drawn on the Punjab National Bank. After giving credit to the said payment a sum of Rs. 1,58,47,732 was due and owing from the company to the petitioner as on the date of filing of the winding up application.
3. A very simply worded statutory notice under sections 433, 434 and 439 of the Companies Act, 1956 was issued to the company on January 30, 2014 by Mr. Sagnik Basu, advocate for the petitioner. On February 21, 2014 the advocate for the petitioner corrected his letter dated January 30, 2014 by stating that instead of Rs. 20 lakhs the part payment received ought to have been Rs. 30 lakhs.
4. Meanwhile, on February 20, 2014 the company replying to the statutory notice merely referred to the earlier correspondence the company had with the petitioner. The claim of the petitioner was not explicitly denied.
5. Now, at this point of time it is very important to look at the correspondence referred to in the reply of the company.
6. The letter dated April 1, 2013 was written on behalf of the petitioner asking for release of the outstanding payment. The letter dated May 9, 2013 was a reminder by the petitioner. On May 17, 2013 the company replied by saying that there were no dues. The denial was evasive without any particulars or explanation. So, also was the tenor of the letter dated May 30, 2013.
7. Mr. Surajit Nath Mitra appearing for the company, basing his submission on the affidavit-in-opposition filed by his client submitted that there was neither any sale nor delivery of goods by the petitioner to the respondent-company. He argued that only invoices raised by the petitioner were annexed to the petition. Not a single receipt or challan evidencing the delivery of the goods had been appended to it. He also submitted that on the face of the documents, the claim of the petitioner was barred by the laws of limitation. He submitted that for the year 2010-11 on the face of it, the claim in respect of five invoices of the value of worth Rs. 51,47,974 was within the period of limitation and that in respect of the other five amounting to Rs. 65,53,602 was beyond the period of limitation, relying on the chart being annexure B at page 31 of the petition.
8. It was also submitted that on behalf of the company a loan of Rs. 30 lakhs was granted by it to the petitioner in five tranches of Rs. 5 lakhs each between June 10, 2013 and November 27, 2013. This was outstanding.
9. If the above is taken as part payment then no part of the claim of the petitioner is barred by the laws of limitation.
10. Furthermore, the petitioner in their affidavit in reply has stated, that the sale of the goods in favour of the company was shown in their value added tax "VAT" returns.
11. In my opinion, the very tenor of the letter of the company dated February 20, 2014 in reply to the petitioner's statutory notice smacks of mala fide. In this letter the company referred to various correspondence between them and the petitioner. In this correspondence the company neither denied receipt of the goods nor disputed its liability to make payment. They may be taken to have said that the entire claim of the petitioner may not
