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2018 Supreme(Del) 1771
IN THE HIGH COURT OF DELHI AT NEW DELHI
JAYANT NATH, J.
Planet Advertising Pvt Ltd - Petitioner
Versus
Ambience Pvt Ltd & Anr. - Respondent
CO.PET. 812 of 2015
Decided On : 03-08-2018
For the Petitioner: Mr. Kunal Kalra and Mr. Ankur Aggarwal, Advs.
For the Respondent: Ms. Nanda Devi and Mr. S.K. Jha, Advs.
When the exact amount of the debt is disputed, a winding up order can be made without requiring the creditor to quantify the debt precisely.
Headnote:
Companies Act - Winding up petition - Section 433(e), 434(a), 439(b) - Madhusudan Gordhandas & Co. Vs. Madhu Wollen Industries Pvt. Ltd., AIR 1971 SC 2600
Fact of the Case:
The petitioner sought to wind up the respondent company under the Companies Act, 1956, claiming outstanding payment for outdoor advertisement services rendered. The respondent disputed the amount, alleging failure to provide agreed services and defective work.
Finding of the Court:
The court found that some amount remained payable by the respondent to the petitioner, citing Madhusudan Gordhandas & Co. Vs. Madhu Wollen Industries Pvt. Ltd., AIR 1971 SC 2600 to admit the petition but deferred appointing the Official Liquidator (OL) as the Provisional Liquidator (PL) till the next hearing.
Issues: Dispute over outstanding payment for services rendered, alleged failure to provide agreed services, and defective work.
Ratio Decidendi: The court admitted the petition based on the legal position that when the exact amount of the debt is disputed, a winding up order can be made without requiring the creditor to quantify the debt precisely.
Final Decision: The court admitted the petition but deferred appointing the OL as the PL, allowing the respondent to deposit a specified amount within four weeks to have the petition revoked. The petitioner was also granted the option to pursue further claims through civil proceedings.
JAYANT NATH, J.
1. This petition is filed under section 433(e), 434 (a) read with section 439(b) of the Companies Act, 1956 seeking to wind up the respondent company. The petitioner submits that it was approached by the respondent company for displaying some of the outdoor advertisement. Purchase orders were placed by the respondent company on 10.6.2014. Between July, 2014 to November, 2014 the petitioner states that he has carried out work of the respondent company to its entire satisfaction and accordingly raised invoices for the work done. Despite completion of the work it is pleaded that payment of Rs.1,01,38,691/- has not been made. Petitioner claims to have sent emails/SMSes to the respondent. Legal notice was sent on 20.08.2015. Reply was received from the respondent where the respondent has denied the submissions of the petitioner.
2. The respondents have filed their reply. In the reply the respondents state that respondent disputes the amount allegedly outstanding in view of the fact that the petitioner has failed to provide the requisite services as per agreements. It is stated that the petitioner has failed to honour the terms of the agreement of service entered into by them with the respondent. Further, it is stated that the materials used in the advertising campaigns were not as per agreements. Based on this, the claim of the petitioner has been denied.
3. I have heard learned counsel for the parties. Learned counsel for the petitioner has relied upon certain emails and whatsapp messages received from the respondent to submit that there was admission of liability. It has also been pleaded that the total outstanding liability was to the tune of Rs.1,03,93,398/-. It has also been stated that as there was inordinate delay in making payment to the petitioner the petitioner on the request of the respondent issued fresh invoices in the name of ‘Ambience Projects and Infrastructure Pvt.Ltd.’. It was stated by the respondent that there was shortage of funds in the respondent company. Hence, in deference to the wishes of the respondent company a consolidated invoice for Rs.53,66,278/- (excluding service tax) was issued in the name of ‘Ambience Projects and Infrastructure Pvt. Ltd.’.
4. Learned counsel for the respondent has vehemently denied the dues. She states that the dues are bonafidely disputed. She has taken me through Annexure P-5 of the petition where an extract from some email written by the petitioner has been reproduced stating that the petitioner is expecting the bill of Rs.53,66,278/- to be cleared within a week. She has also relied upon an email dated 31.7.2014 where the respondents have communicated to the petitioner some defects in the work carried out. Based on these documents she submits that there are no admitted dues payable to the petitioner. The work that was done by the petitioner was found to be defective. Some amount she submits would be payable but the same is not quantified. She further submits that Civil Suit will be an appropriate remedy in this case for the petitioner to claim its dues. She relies upon judgment of this court in Focus Management Consultants Pvt. Ltd. vs. Second Foundation India Pvt. Limited, (2007) 3 CompLJ 127 (Del).
5. I may refer to some of the documents relied upon by the petitioner. The petitioner has placed on record an email dated 22.12.2014 whereby the petitioner has pointed out regarding an outstanding amount of Rs.1,03,93,398/- to the respondent. The respondent has replied on the same date stating that once the cheques are ready intimation will be sent to the petitioner. Hence, there is no denial of the dues payable to the petitioner.
6. Similarly, learned counsel for the petitioner has relied upon an exchange of whatsapp message which was sent on 17.11.2014 where the reply was received on 17.11.2014 stating that the work will be taken care of. Again there is no denial of the dues of the petitioner.
7. I also cannot help noticing that in the reply the respondent do
