KESAR ENTERPRISES LTD. Vs. IDI LTD.

JUDGEMENT

(1.) THE petitioners have prayed for an order of winding up of the respondent -company under Sections 433 and 434 of the Companies Act, 1956, alleging failure on the part of the respondents to pay off the debt to the tune of Rs. 20,57,600.66 as computed in the particulars of claim of the petition and interest thereon. From the averments in the petition, it appears that there was a contract between the parties to allow the respondent -company to store its material at the storage terminal of the petitioner at Kandla, Gujarat. The petitioners had agreed to extend the storing and handling facility to the respondent -company for its products on the terms and conditions which were reduced in writing in the agreement dated January 22, 1986. According to the petitioners, the respondent -company has failed and neglected to pay to the petitioner the storage charges for three periods, viz., September, 1995, to November, 1996, for an amount of Rs. 7,20,252 ; from June, 1998 to July, 1998, for an amount of Rs. 1,83,020 ; and August, 1998, for an amount of Rs. 84,002.

(2.) FROM the statement of outstandings the petitioners have claimed the total debt from the respondent -company to the tune of Rs. 20,57,600 inclusive of interest calculated by the petitioners to the tune of Rs. 10,70,396.66 on the principal amount of Rs. 9,87,274. According to the petitioners, the respondents have no bona fide dispute and genuine reason not to pay the aforesaid amount and that they have admitted the debt to the tune of Rs. 6,86,802 for the first period and there is no dispute over the claim for the second period and they have absolutely no defence for the third period. There was no reply to the statutory notice calling upon the respondents to pay off the debt of the petitioner -company and warning them of the winding up petition on their failure to do so.

(3.) AS far as the claim for the first period is concerned, the straight and clean reply of the respondents is that the alleged debt for the period between September, 1995, and November, 1996, is clearly time -barred by limitation as the petition is filed on August 31, 2000, i.e., beyond the statutory limitation period of three years from the cause of action. As far as the second period is concerned, the respondents have no specific defence but in particular it is contended that the entire petition is not maintainable and that the claims cannot be segregated and decided in the winding up petition. For the third period the defence appears to be of total denial on the factual aspect that the petitioners were to shift the material from the tank hired by the respondents to another tank for which a third party, viz., C J. Shah and Co. was to make payment of the hire charges. There was delay in shifting the material by the petitioners and, therefore, they cannot bill the respondents for the storage charges for the said period from August 1, 1998, to August 6, 1998. It is further contended on behalf of the respondents that there has been substantial dispute in the manner in which the respondents were charged. Initially it was on the basis of calibrated charges, i.e., for full tank irrespective of the actual storage and subsequently, however, the manner of freight was modified from the calibrated to the actual storage of the material. There was change in the freight from the full storage to actual storage. Shri Biren Saraf, learned counsel for the respondents has pointed out that the respondents have made payment on the basis of the actual storage and not on the basis of the full capacity of the tank, though, the petitioners have billed them on the basis of the full calibrated capacity. The modes of billing were changing from time to time and that there was no agreement to pay on full calibrated capacity, says learned counsel for the respondents. According to him, the very fact that the respondents have not made payment on the basis of the full capacity or on the basis of the bills and the fact that the petitioners had accepted the said payment would indicate at least the fact of dispute between the parties. According to Shri Saraf, there was mutual understanding and that point of dispute will require evidence. Shri Saraf further pointed out that for the period of 1997 -98, the respondents have always made payment on the basis of the full capacity as agreed. Shri Saraf has vehemently attacked the petitioners for attempting to browbeat the company by lodging a very huge and inflated claim to the tune of Rs. 20 lakhs odd. The petitioners are claiming the amount of interest to the tune of Rs. 10,70,323.66 though in fact there was no agreement to pay interest at all. The principal amount which is computed in the statement is Rs. 9,87,274. Learned counsel further submits that the first part of the claim for the period between September, 1995, and November, 1996, is clearly unenforceable being barred by limitation. The said claim is included in the petition. Thirdly, with a view to terrorise or browbeat the respondent -company and to prejudice the court an attempt is made to demonstrate that huge debt to the tune of Rs. 20 lakhs odd is due and payable by the respondents to the petitioner -company. Shri Saraf has submitted that there has been a bona fide dispute between the parties in respect of the debt and the manner in which the tanks should be charged. The entire claim, according to him, is baseless and that the petitioners are trying to push through this petition the unlawful and unenforceable debt which is barred by limitation. He has further submitted that in a company petition of this nature, the company court cannot compute the debt by simple calculation and arrive at an amount payable to the petitioner -company. This exercise cannot be undertaken by the company court, says Shri Saraf. Learned counsel has questioned the legitimacy of the petition which is ex facie meant to recover the debt from the respondent -company. According to learned counsel, the alternative remedy of civil suit is open and available to the petitioners wherein the parties and the respondents in particular will have an opportunity to adduce the evidence and bring the material on record on the basis of which the petitioners have claimed such a huge amount as debt. He has further pointed out that the respondent -company has assets to the tune of Rs. 22,689 lakhs. It has paid central excise to the tune of Rs. 2,855 lakhs approximately and has earned huge amount in foreign exchange for the State. The respondent -company has more than 3,000 employees and that its substratum continues to be very strong. To a query from the court, Shri Saraf has candidly disclosed that there is another winding up petition pending before this court filed by debenture holders and in fact the respondents have without prejudice paid a sum of Rs. 5 lakhs and would make payment of another installment of Rs. 5 lakhs very soon. He has also submitted that the debenture holders are full secured creditors and the assets are much more than the claim of the debenture holders. In the aforesaid circumstances, according to learned counsel, the respondent -company cannot be ordered to be wound up and admission of the petition would be injurious to the functioning of the respondents as after admission it will be advertised which would cause great harm and damage to the working and credibility of the respondent -company.