RAM PURSHOTTAM AWASTHI Vs. VAKRANGEE LTD.

JUDGEMENT

(1.) By an order dated 3-3-1998 a learned Single Judge of this Court recorded a finding that considering invoices bearing Nos-A-4 and A-5 the sum of around Rs. 10 lakhs was in consonance with the agreement of the parties. Thereafter Company was directed to deposit Rs. 8 lakh with direction to the petitioner to file a suit. The company aggrieved by the said order, preferred an appeal. By order dated 3-4-1998 the Division Bench of this Court modified the order to the extent that the company was directed to deposit Rs. 4 lakhs and furnish Bank Guarantee for the remaining amount. The company preferred special leave petition. The special leave petition was dismissed as withdrawn with liberty to the company to approach this Court for appropriate relief. On 15-7-1998 when the matter came up before the Division Bench it gave a finding that in view of the findings of the learned Single Judge, the petition for winding up was required to be admitted. The Division Bench thereafter allowed the review petition, set aside the order and remanded the matter to this Court.

(2.) At the hearing of the petitioner. The learned counsel for the company contends that there are serious disputes inasmuch as claims have been made by the petitioner, invoices in respect of which were never served on the company. It is also contended that the petitioner has over-billed the company and also that the work was not to specification. The petitioner had served statutory notice on the company dated 10-9-1996. The work had been completed by Nov., 1995. In paragraph 2 it was averred that the work was done to the satisfaction of the company and invoices had been raised which are received and accepted. In paragraph 4, it is set out that against the total sum of Rs. 43,56,316 the petitioner had received part payments aggregating to Rs. 27,78,811 leaving the balance of Rs. 15,87,505. In paragraph 5, it was set out that complete accounts had been submitted to the company in Dec., 1995. In reply to the statutory notice, it was contended on behalf of the company that the work done by the Petitioner was not to their satisfaction. It was further contended that the invoices received by the Company were highly inflated. The company assessed the value of the work and accordingly paid a sum of Rs. 27,78,811 which was on the higher side. It is further averred that the work done by the petitioner was+assessed through the competent authority who had stated that the work was worth the said amount less the amount paid and that some amount is refundable. In response to paragraph 5, the only contention is that the invoices were valid and figures were inflated. A reply has been filed to the petition by Shri Dinesh Nandwana and a rejoinder by Shri Ram P. Awasthi on behalf of the petitioner. After perusing the statutory notice, the reply thereto and the averments in the reply and the rejoinder, it is clear that at no point of time did the company challenge the receipt of invoices as it now sought to be done in argument. In fact in reply to the statutory notice where the petitioner had clearly set out that the accounts had been submitted in Dec., 1995, this was not challenged. The challenge only was that the work was not to the specification and on assessment the work was worth only the amount already paid and that the bills were inflated. As pointed out earlier the work was completed by Nov., 1995. Nothing has been placed on record previous to the reply to the statutory notice that there was any dispute about the quantum or that the work was substandard. These are defences raised only at the time of reply to the statutory notice and subsequently in the affidavit in reply to the petition. To my mind these defences are neither bona fide nor credible. However, considering the facts and circumstances, the following order:-

(3.) Company to deposit within eight weeks a sum of Rs. 4 lakhs and furnish bank guarantee in an amount of Rs. 4 lakhs to be kept alive in terms of the directions to be given hereinafter. On such deposit and furnishing bank guarantee. The company petition to stand dismissed. Company to give notice to the counsel for the petitioner within one week of deposit and furnishing bank guarantee. On such notice, the petitioner to file suit for the amount claimed by them as set out in the company petition. The amount deposited as also the bank guarantee to be transferred to the said suit.