The main legal point established in the judgment is that a company cannot deny its liability to pay admitted debts based on internal arrangements of share transfer, and the court may grant time for payment before taking legal action.

JUDGMENT :

Suman Shyam, J.

Heard Dr. A. K. Saraf, learned senior counsel assisted by Mr. P. Baruah, learned counsel appearing for the petitioner. I have also heard Mr. R. Gogoi assisted by Mr. K. Singh, learned counsel representing the respondent.

2. The petitioner herein, is a partnership firm having its office at Chatribari Road, Guwahati in the State of Assam and is represented by its partner Sri Ashish Khejriwal. This petition has been filed under Section 433, 434 and 439 of the Companies Act, 1956, praying for an order from this Court for winding up of the respondent company due to its inability to pay the admitted debts.

3. The facts leading to the filing of this company petition, briefly stated, are these :-

(a) The respondent is a company within the meaning of Companies Act, 1956. The petitioner is a turn- key contractor of civil construction, fabrication and erection works. In view of the expertise of the petitioner firm in executing civil construction, fabrication and erection works, the respondent company had entered into two agreements with the petitioner firm viz, (i) agreement dated 01/01/2009 for execution of certain civil construction work in connection with the proposed 1.4 MTPA Cement Grinding Unit at Lanka and (ii) agreement dated 25/11/2009 for execution of the work of fabrication and erection of the proposed 1.4 MPTA Cement Grinding Unit. Pursuant to the signing of the aforementioned agreements, the respondent company had issued work order dated 13.10.2009 for civil works at Lanka valued at Rs 31,03,69,697/-, work order dated 15.03.2010 for execution of mechanical works at Lanka valued at Rs 9,46,51,187.50 p and work order dated 13.10.2009 for executing civil works at Umrangsho valued at Rs 22,29,15,340/-. In terms of the aforesaid work orders issued by the respondent company under the aforementioned two agreements, the petitioner firm had undertaken civil works of the proposed 2500 TTP Clinkerisation Unit at Umrangsho.

(b) Upon completion of the work, the respondent company, being satisfied with the quality of work, had issued work completion certificate dated 22/12/2011. The petitioner had raised bill amounting to Rs. 41,31,65,006/- for the works executed under the aforementioned contract agreement and out of the said amount, the respondent company had also paid Rs. 36,83,93,686/- to the petitioner firm leaving a balance of Rs. 4,47,71,320/-. When the work orders were issued to the petitioner, the respondent company was under the management and control of Bawri Group (BW group) but on 16/01/2012, the Dalmia Group of Companies had entered into a Share Purchase Agreement with the BW Group for purchase of majority of the shares in the respondent company. Although the work entrusted to the petitioner was suspended for a brief period while the Share Purchase Agreement was being executed, after the agreement was signed, the construction work had resumed but the Dalmia Group had finished the balance portion of the work by engaging another contractor. Even thereafter, the respondent company had made part payment against the invoices and bills raised by the petitioner but a sum of Rs. 3,16,04,550.68 remained due and payable to the petitioner. On 27/05/2012, the respondent company had issued a letter acknowledging the fact that a sum of Rs. 3,16,04,550.68 was due and payable to the petitioner but stated that the payment would be delayed due to insufficiency of funds.

(c) On 19/12/2013, the representative of the respondent company had sent an email to the petitioner intimating that the amount could not be paid due to paucity of fund. However, out of the outstanding dues of Rs. 3,16,04550.68,, the respondent company had paid a sum of Rs. 71,90,010/- during the year 2012-13 and thereafter, an amount of Rs. 67,11,000/- during the year 2013-14, thereby partially discharging its contractual obligation towards the petitioner thus leaving an amount of Rs. 1,77,03,540.68 as the outstanding dues.

(d) On 12/06/2014, the respondent c