INDUSTRIAL DESIGNS BUREAU Vs. FALCON GULF CERAMICS LTD

JUDGEMENT

(1.) IN this petition filed for winding up of respondent -company under Sections 433(e) and 439 read with Section 434 of the Companies Act, 1956, an order for winding up had been passed by a learned single judge of this court on November 24, 1992. This order has been set aside by a Division Bench vide order dated March 22, 1993 (see Falcon Gulf Ceramics Lid. v. Industrial Designs Bureau [1996] 86 Comp Cas 207 (Raj)) passed in D. B. Special Appeal (Company) No. 76 of 1992. The Division Bench has set aside the order dated February 24, 1992, passed by the company judge only on the ground that the order of winding up was not preceded by an advertisement and that advertisement of a petition wasimperative in view of the provisions of Rule 96 of the Companies (Court) Rules, 1959, read with Rule 99 of the said Rules.

(2.) IT will be proper to refer to some of the facts in order to decide the question as to whether an order for advertisement of the petition should be issued or not. The petitioner is a proprietory firm of architects, engineers and planners. The company had entered into a consultancy service contract with the respondent -company for lay -out, drawings, engineering, tender -invitation and supervision of construction of its factory, office and connected buildings of their project on plot Nos. 223 to 226, Matsya Industrial Area, Desula, Alwar. The respondent -company is engaged in the manufacture of sanitaryware. It invited tenders for the work relating to construction of factory, office and buildings and the contract was awarded on June, 15, 1987, to Nucon India Pvt. Ltd. It is alleged that the work under the consultancy service contract stood completed on May 14, 1991. Before the petitioner submitted its final bill, it wrote a letter dated March 22, 1991, to the respondent seeking confirmation of its credit balance of Rs. 1,76,646.41 as on March 31, 1990. On March 27, 1991, a certificate was given by respondent -company to the following effect :

(3.) THE respondent -company has contested the claim of the petitioner by alleging that the petition filed by the petitioner is not bona fide. It has been filed with the sole object of coercing the respondent -company for making payment of amounts that are not legally due and payable. Thefurther plea of the respondent -company is that several disputed questions of fact are involved and such disputes are bona fide disputes and that the petitioner has entered into a conspiracy with the contractor Nucon India Pvt. Ltd. to defraud the company. The respondent -company has further asserted that the petitioner has certified the arrears of various amounts to be paid to the contractor, even though the said amounts are not payable in terms of the agreement entered into between the respondent -company and the contractor. According to the respondent, wrong certificates had been given by the petitioner -company with full knowledge that the particular amounts are not due to the contractor. This has been done by the petitioner with the object of causing unlawful losses to the respondent -company and undue gain to the contractor. The further case of the respondent is that the claim of the contractor is in dispute and the same has been referred to the arbitrator. Till that arbitration is finalised, the claim of the petitioner cannot be determined and, therefore, the petition filed by it must be dismissed as premature. While asserting that the respondent -company has never been negligent in making payment of a debt due from it, it has pleaded that the contractor's bills finally approved by the architect are contrary to the terms of the contract.