NEPC AGRO FOOD LIMITED V HINDUSTAN THOMPSON ASSOCIATES LIMITED OSA NO 69 OF 2000 AND CMP NO 5072 OF 2000 AND NEPC MICON LIMITED Vs. HINDUSTAN THOMPSON ASSOCIATES LIMITED OSA NO 70 OF 2000 AND CMO NO 5073 OF 2000

JUDGEMENT

(1.) THE respondent in the above appeals filed two company petitions, viz., CP No. 17/1997 against NEPC Micon Limited, Chennai, the appellant in OSA No. 70/2000, and CP No. 18/97 against NEPC Agro Foods Ltd., Chennai. Pending the company petitions, a learned Single Judge of this court, passed a common interim order, appointing a commissioner (a chartered accountant) to verify the extent of amount payable by the appellants herein to the respondent. THE respondent in Company Petition No. 18/97 has filed the appeal, viz., OSA No. 69/2000. Similarly, the respondent in Company Petition No. 17/97 has filed the appeal in OSA No. 70/2000. Inasmuch as a common interim order was passed by a learned Single Judge of this court, these two appeals can be disposed of by a common judgment. It is unnecessary to set out every detail with regard to the case of the respective parties in both the appeals in view of the fact that the only question/issue which arises for consideration is, viz., whether the learned Single Judge is right in passing the order now appealed against. As far as OSA No. 69 of 2000 is concerned, the respondent filed the company petition under section 443(e) , (b) a nd 43 4(1)(a) o f the Companies Act, 1956

(2.) THE appellant, inter alia, resisted the petition, contending that the appellant is liable to pay the just claims as and when it is established and further that the petitioner was at fault in not furnishing the original bills and supporting documents as agreed. THE appellant also raised a plea in the counter statement that there is no question of the appellant group companies being liable to pay a sum of Rs. 3, 77, 62, 680. 46 towards principal and further assuming without conceding that the appellant is liable to pay to the respondent, the liability of the appellant arises only after the obligation of the respondent is performed, viz., furnishing the original bills and supporting documents. In the counter statement, in several places, the appellant reiterated its stand that unless the obligation of the respondent is performed, i.e., furnishing original bills and supporting documents as agreed by the appellant, the question of making payment by the appellant to the respondent does not at all arise. In paragraph No. 15 of the counter statement, the appellant has contended that it is not liable and responsible to pay any amount, much less the amount mentioned in paragraph Nos. 8 and 9 of the company petition and the petitioner is relying on certain documents to impute liability on the respondent and in order to prove that the oft repeated allegations made by the petitioner that the claim made by the petitioner against the respondent company is undisputed and admitted by the appellant/company in various documents filed along with the petition are absolutely false.THE respondent in OSA No. 70 of 1997 filed CP No. 17/1997 against the appellant in that appeal, under section 433(e) of the Companies Act, 1956, read with section 439(1)(b) of the said Act, praying the court to wind up the company, on the ground that it failed to make the payments due to it.

(3.) THE learned Single Judge obviously taking note of this defence and the confirmatory statements of accounts given by the officers of the appellant/company and also the statement in the handwriting of the director of the appellant/company setting out the amounts to be paid by the appellant and the dates on which such amounts are to be paid, even though some explanations/objection are given by the appellants with regard to these documents, to find out whether the defence of the appellant is in good faith and one of substance, thought it fit to appoint an auditor to verify the accounts. Rightly, in the peculiar circumstances of the case, the learned Single Judge passed the impugned order and certainly it cannot be stated that by passing this order, the court has not rendered justice to the appellants and has exceeded its jurisdiction. THE respondent has made it clear before this court that all the original receipts received by it shall be produced before the auditor. THE appellants shall be entitled to inspect the same and the appellants, if they want, may call upon the respondent to furnish xerox copies of the same after inspection or before inspection. As mentioned, supra, the argument of the learned counsel for the appellant that the learned Single Judge has proceeded on a wrong assumption as if the appellant is liable to pay certain amounts to the respondent and the only question is what is that amount - cannot be accepted. Equally, it cannot be said that the learned Single Judge has not considered the explanations/objections with regard to these two documents while passing the impugned order. THE court need not at this stage pass a detailed and reasoned order which is only an interim order and the same has been passed only to know the correct position and thus to understand the case of the respective parties properly. We refrain from discussing the merits of the case, as it would affect one party or the other at the time of disposal of the company petition.Learned counsel for the appellant next contended that section 443(1)(c) of the Indian Companies Act though empowers the court to make any interim order that it thinks fit on hearing the winding up petition, that can be understood and only referable to the proceedings pertaining to the determination of the financial position of the company and to determine whether it should be wound up or not in the interests of the general body of creditors. According to the learned counsel, as otherwise, by appointing an auditor as in the instant case, the Company Court is converted as a civil court to resolve civil dispute. We do not see any substance in this contention. Section 443(1) of the Indian Companies Act, reads thus :