CONCEPT COMMUNICATION LTD Vs. RAVISH INFUSIONS LTD

JUDGEMENT

(1.) BY this appeal the appellant, which is a creditor of the respondent, challenges the Order, dated 5th May 2000, passed by the learned Company Judge, in Company Petition No 5-C of 1998, dismissing the winding up petition. For the sake of convenience, the appellant, who was the petitioner before the learned Company Judge, is hereinafter referred to as the petitioner'.

(2.) THE respondent approached the petitioner in the year 1994 for the job of advertisement in relation to its public issue and the petitioner carried out the job work of advertisement. Against the bill of Rs. 16,89,583. 67 for the job of advertisement, the respondent made a part-payment of Rs. 8,49,840/-,in installments between March 1994 to October 1994. The last part-payment of Rs. 49,840/- was made on 3rd October 1994 leaving a balance of Rs. 8,39,743. 67. Two cheques issued by the respondent, one for Rs. 2 lakhs dated 26th April 1994 and the other for Rs. 1 lakh dated 26th March 1994 were, however, dishonoured. By various letters the petitioner demanded payment of the balance amount from the respondent. By a few letters sent in reply, the respondent pleaded financial difficulties and promised to make the payment. However, as the payment was not forthcoming, the petitioner sent a notice under Section 434 of the Companies Act on 20th April 1996, demanding payment and threatening to file winding up petition in the event of default. By a reply of 20th May 1996, the respondent for the first time disputed its liability alleging that the petitioner was negligent in publication of the advertisement on the back page of the Economic Times without taking approval of the lead Manager due to which SEBI issued a show cause notice upsetting the public issue. The respondent made a claim for damages of Rs. 4,32,000/ -. In the reply the respondent did not give the details of claim for damages of Rs. 4,32,000/-, but only stated that the claim copy was kept with the company's auditors, which would be sent to the petitioner within two weeks. It appears that the details of the said claim were never sent to the petitioner. On account of the failure of the respondent to pay the amount demanded, the petitioner filed a winding-up petition on 4th July 1998. By the impugned Order, dated 5th May 2000, the petition was dismissed. Hence the appellant is in appeal.

(3.) IT is not disputed by the respondent that the petitioner was appointed by it for the purpose of carrying out the work of advertisement in respect of its public issue. It is also not disputed that the petitioner did carry out the said work and submitted bills in the sum of Rs. 16,89,583. 67. After giving a credit for the part-payments received, an amount of Rs. 8,39,743. 67 is due in respect of the said bills. The learned counsel for the respondent, however, submits that the petition was liable to be and was rightly dismissed. Firstly, the claim was barred by limitation, secondly, the claim was disputed, thirdly, the respondent had a valid counter-claim and fourthly, that the winding-up petition was filed after 2 years of the notice of demand and, therefore, in appeal, this Court should not interfere in the discretion exercised by the Company Judge in refusing to admit the petition.