In the High Court of Punjab and Haryana, at Chandigarh

Company Petition No. 123 of 2014 (O&M)

Date of Decision: 06.05.2022

M/s Suvidha Engineers Private Limited

... Petitioner(s)

Versus

M/s Cosmas Research Lab Ltd.

... Respondent(s)

CORAM: Hon'ble Mr. Justice Anil Kshetarpal.

Present:

Mr. L.B.Rai, Advocate

for the petitioner.

Mr. Nitin Thatai, Advocate

for the respondent.

Anil Kshetarpal, J.

1.

Through this petition, filed under Section 433 (e) and (f), 434

and 439 of the Companies Act, 1956 (hereinafter referred to as “the 1956

Act”) read with Rule 9 of the Companies (Court) Rules, 1959 (hereinafter

referred to as “the 1959 Rules”), the petitioner prays for passing an order for

winding up of the respondent company for having failed to pay its debt.

2.

At the outset, it must be noticed that Section 433(e) of the 1956

Act uses the expression “if the company is unable to pay its debts”. Sub

Section (f) to Section 433 of the 1956 Act uses the expression “if the

Tribunal is of the opinion that it is just and equitable, then the company

should be wound up”. Section 434 of the 1956 Act elaborates as to when the

company is deemed to unable to pay its debts. Section 439 of the 1956 Act

prescribes the procedure for filing a petition.

DEEPAK KUMAR BHARDWAJ

2022.05.07 10:45

I attest to the accuracy and

integrity of this document

Company Petition No. 123 of 2014 (O&M)

2

3.

In the present case, the respondent company had placed orders

for supplying, testing, installation and commissioning of heating, ventilating

and air conditioning system at its factory in the year 2010 for a total amount

of 6,25,00,000/-. Admittedly, the amount of 5,78,23,012/- out of total

₹

₹

payment of 6,25,00,000/-

₹

has been paid by the respondent to the petitioner.

The petitioner claims that the balance amount of 68,56,000/- has not been

₹

paid. As per the tendered document and the contract entered into between

the parties, the payment was payable as per the following schedule:-

“a)

10% advance against ABG (Advance Bank Guarrantee).

b)

80% against prorata installation.

c)

10% against commissioning and submission of PGB

(Post Bank Guarantee) of 10% valid for one year from

the date of commissioning”.

4.

On the one hand, the petitioner company claims that it has

already completed its work, whereas on the other hand, the respondent

claims that neither the work is complete nor the material that was used was

of appropriate quality. It is claimed that the petitioner company used the

substandard quality material which was not as per the specification and the

petitioner company has also failed to provide a standard quality certification

of the products used by them as per the standards mentioned in the tendered

document.

5.

Since a dispute arose, a joint meeting between both the parties

was held on 13.06.2013 at the work site of the respondent company at

Ludhiana. The minutes of the aforesaid meeting have been placed on the

record, which are extracted as under:-

DEEPAK KUMAR BHARDWAJ

2022.05.07 10:45

I attest to the accuracy and

integrity of this document

Company Petition No. 123 of 2014 (O&M)

3

“MOM-MEETING HELD AT COSMAS, LUDHIANA ON

13/06/2013

Following was agreed by all present:

1)

COSMAS VRF ACCOUNT

Net Balance payment @ 90%

Rs.13.26 L

2)

Payment due on commissioning of VRF @

10%

Rs.1.83 L

3)

COSMAS BETALECTUM BLOCK

Balance amount payable

Rs.68.56 L

4)

COSMAS HAS SUGHT CLEARANCE

OF EXTRA ITEMS OF VALUE FROM

MEHTALIA

Rs.9.80 L

Housings - 7,50,000/-

Flexible - 2,30,000/-

9,80,000/-

Cosmas committed to get this extra items

cleared before 3^rd July, 2013.

5)

Cosmas will issue a List of operational

observations noted by them after

commissioning so that Suvidha address

them to the requirement.

List to be issued by 20/06/2013

6)

COSMAS PROPOSED RELEASE OF

BALANCE PAYMENTS AS PER

FOLLOWING SCHEDULE.

6.1) Rs.10L on account of balance payment

listed at Poiint (1) above (on account of

VRF)

Released

by