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2003 Supreme(Del) 559
High Court Of Delhi
HOTLINE TELETUBES AND COMPONENTS LIMITED - Appellant
Versus
A.S.IMPEX LIMITED - Respondent
COMPANY PETITION 408 of 2001
Decided On : 07/07/2003
ANIL SHARMA, S.K.Makkar, SANJIV SARASVAT
Headnote:Company Law - Winding up — Inability to pay debts — Respondent company changing its address but before intimation of same to the Registrar of Companies petitioner serving statutory notice to the previous address — Provisions of Sections 433 and 434 of Companies Act complied with and petition cannot be dismissed on that ground — Company filing petition before the MRTP Commission but the claim is much lower than its admitted liability — Winding up petition to be admitted and Official Liquidator be appointed — Companies Act, Sections 433, 434.
Held:
The intimation about change of address by the respondent company was filed with the Registrar of Companies only on 7.11.2001 and before the said date the registered notices were sent by the petitioner. The petitioner could not, thereforee, had any knowledge about change of the registered office of the respondent company as in the official records the same address continued to exist. thereforee, sending of the notices by the petitioner at the registered office of the respondent in terms of the official records has to be held to be legal and valid and the present proceeding cannot be held to be not maintainable because the same could not be served on the respondent company as it in the meantime changed its office. There is full compliance by the petitioner as required by the provisions of Sections 433 and 434 and the petition cannot be dismissed on the aforesaid ground as alleged by the respondent.
The total claim of the respondent against the petitioner in the said proceeding as spelt out from the prayer clause of the petition filed before the MRTP is only Rs. 30 lacs whereas the admitted liability of the respondent is to the tune of Rs. 1.24 crores. The dispute that is sought to be raised before the MRTP Commission by the respondent does not appear to be bone fide as the same was an after thought and is initialed by the respondent only after the petitioner has taken resort to the provisions of Section 433, 434 and 439 of the Companies Act. Such a plea is raised before the MRTP Commission in order to cause delay in payment of the admitted dues which cannot be said to be a bona fide dispute. It is also to be noted that at this stage the Company Court is only to be prima facie satisfied that the respondent is indebted to the petitioner and that it is unable to pay its debts. Indebtedness of the respondent to the petitioner is an admitted fact and that it is unable to pay its debt is also proved from the evidence on the record as the cheques. issued by it were dishonoured by the bank when presented for encashment.
The present petition is-required to be admitted to hearing. Citation shall also be published in a daily issue of Statesman (English) and Jansatta (Hindi) for 16th October, 2003. The Official Liquidator attached to this Court is appointed as the Provisional Liquidator, who is directed to take over the assets and the records of the respondent company. It is also made clear that the observations made herein are meant only for the purpose of deciding whether or not the present case could be admitted for hearing and the opinions recorded are prime facie in nature.
( 1 ). The petitioner has filed the present company petition praying for orders of winding up of the respondent company on the ground that the respondent company is indebted to the petitioner and that it is unable to pay its debts and that it has become commercially insolvent.
( 2 ) BRIEFLY stated, the facts of the case are that the respondent purchased cathode Ray, Tubes (picture tubes for TV sets) from the petitioner. Against the supplies made by the petitioner a sum of Rs. 1,22,45,996. 27p was due and payable by the respondent as per the reconciled balance as on 17. 3:2000. The respondent gave a balance confirmation vide confirmation note dated 17. 3. 2000 and the said confirmation dated 17. 3. 2000 is placed with the documents filed by the petitioner. Therefore, in terms of the balance confirmation note given by the respondent debt to the aforesaid extent is admitted by the respondent.
( 3 ) AFTER the respondent gave the confirmation note dated 17. 3. 2000, the petitioner supplied further material from time to time for the total invoice value of Rs. 84,91,600/ -. As against the previous outstanding balance amount of a sum of Rs. 1,22,45,996/- and against further supplies made, the respondent made various payments to the petitioner totaling to a sum of Rs. 82,01,196/ -. It is also stated that these payments were made during the period between 18. 3. 2001 to 24. 10. 2001. There could be no dispute to the aforesaid position and the same is established from the records placed.
( 4 ) IT is alleged that as the aforesaid outstanding amount had become substantial the petitioner refused to supply any further material with effect from september 2000 unless past dues were cleared. On the assurance of the respondent that past dues would be cleared, the petitioner resumed supplies on 12. 11. 2000. However, supplies with effect from November 2000 were made only against the letter of credit. The petitioner endorsed the balance confirmation of outstanding amount as on 24. 10. 2001. As per the said statement a sum of Rs. 1,24,74,195/- was due and payable as on 24. 10. 2001. The aforesaid balance confirmation is placed on record. The respondent also issued various post dated cheques for the outstanding amount and all the aforesaid cheques when presented to the bank for encashment were dishonoured and returned with various remarks of the bank such as "exceeds arrangement", "not arranged for" and "payment stopped by the drawer". Photocopies of all the aforesaid cheques along with return memos have also been placed on record by the petitioner.
( 5 ) STATUTORY notice under Section 433 of the Companies Act was sent to the respondent on 30. 10. 2001. The said notice was received back from the post office with the remarks "addressee left". Another copy of the notice was dispatched to the respondent through registered A. D. post on 6. 11. 2001. Same also received back unserved with similar remarks. With the aforesaid statement and allegations, the present petition was filed in this Court. The respondent filed a reply to the company petition raising various defences to the aforesaid claims of the petitioner. One of the grounds that is raised is that the statutory notice under Section 433 is not served on the respondent in terms of the provisions of Section 433 and 434 of the Companies Act and, therefore, the present proceeding is not maintainable. The respondent has also claimed that it has a counter claim against the petitioner on account of over charging for which the respondent has already filed a compensation application under section 12b of the Monopolies and Restrictive Trade Practices Act before the mrtp Commission against four manufacturers of picture tubes including the petitioner alleging that these four manufacturers including the petitioner had formed a cartel and had caused wrongful loss to the respondent by selling the picture tubes at a higher price. Another defence that is raised is that the petitioner has also
