HINDUSTHAN COPPER LTD Vs. INTEGRAL CONSTRUCTION COMPANY INDIA

JUDGEMENT

(1.) Hindustan Copper Limited, the appellant above named, is a wholly owned Government Company, principally, working in the field of excavation of copper and copper ore and deal with metals including copper, lead, zinc etc. They entered into an agreement with the respondent for excavation of copper ore in the State of Madhya Pradesh. The respondent executed the work and, from time to time, submitted running bills, those were paid. The final bill that was raised, is appearing at page 17 of the paper book. We find from the billing summary, a sum of rupees twenty three crores thirty two lacs fifty six thousand seven hundred sixteen was billed for the cumulative value of work done by the respondent. After taking into account the running bills, a sum of rupees six crores twenty two lacs became due and payable which would come to six crores ninety eight lacs after adding the Service Tax and giving credit to the sums paid on that account, a sum of rupees one crore forty nine lacs became due and payable. Ultimately, the net amount as passed for payment was rupees one crore thirty three lacs ninety four thousand four hundred and ninety two for which respondent filed a winding up petition as against the appellant being C.P. No.297 of 2009. The facts would depict, initially, the respondent approached the High Court of Madhya Pradesh by filing a Writ Petition, inter alia, claiming for the said sum. The learned Single Judge dismissed the Writ Petition by observing, for issuing a mandamus, crystallization of a legal right would be the basis. The document relied upon by the petitioner is full of incursions and interpolations which are apparently not been certified by any authority. The learned Judge referred to the document at page 17. A Writ appeal was filed. The Division Bench observed, without entering into the merits of the case, we are only inclined to grant liberty to the appellant to submit a representation to the Chairman-Cum-Managing Director of the respondent Company to deal with the facet of payment and if the same is admitted, the authority shall act accordingly. In any case, the representation shall be dealt with as per law and be disposed of within a period of two months from the date of receipt of the same. A Review Petition was filed that was dismissed after condoning the delay. The respondent made a representation as we find from page 22-24. They contended to have excavated thirteen crores fifty eight lacs cubic meter. They also claimed to have certified removal of thirteen crores forty eight lacs cubic meter as per the joint measurement. Final bill was settled at rupees one crore thirty three lacs that was passed for payment. In such view, they prayed for payment within twenty one days with a caution that they would be moving the learned Company Judge having appropriate jurisdiction for winding up of the appellant company. The company did not reply to the notice of demand.

(2.) Company filed an Affidavit-in-Opposition that would indicate no plausible reason to resist the order of winding up as pointed out by the learned Single Judge. The learned Judge found that the company only disputed the payability of the claim. His Lordship admitted the winding up petition and directed advertisement to be published. The appellant filed an appeal. The learned Judge dismissed the appeal finding it a defective one with liberty to file appeal afresh.

(3.) Accordingly, a second appeal was filed as against the order of admission. However, the respondent, in the meantime, proceeded to advertise the notice that appeared before the learned Single Judge again. The company could not file affidavit at the post admission stage. The learned Judge did not have any other option but to pass an order of winding up that would give rise to the other appeal being A.P.O. No.299 of 2012. The learned Judge recorded, a casual prayer is made on behalf of the company for extension of time to file its Affidavit-in-Opposition at the post advertisement stage. It is almost taken for granted that since the company is a Government Company any prayer made for extension of time of any length would be taken as a command by Court and slavishly followed. These Government Organizations and their officers must be disabused of such impression as of yesterday. His Lordship declined to extend the time and passed an order of winding up. Pertinent to note, despite advertisement, being published, no one has come up before the learned Single Judge either to support or oppose the winding up proceeding.