$~CP-16 * % + IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision:
06. 05.2019 CO.PET. 400/2012 REGULUS INFRASTRUCTURE MANAGEMENT........ Petitioner
SUPER PROPERTY MAINTENANCE PVT LTD..... Respondent Through Mr.Akhil Sachar, Ms.Sunanda, Advs. versus Through Ms.Kaadambari and Ms.Mansi Sinha, Advs. CORAM: HON'BLE MR. JUSTICE JAYANT NATH JAYANT NATH, J.
(Oral) This petition is filed under section 433 and 434 of the Companies Act, 1. 1956 seeking winding up of the respondent company. The case of the petitioner is that on 13.11.2009 the respondent engaged the petitioner to perform certain management services in respect of the Gold Souk Mall in Kochi owned by the petitioner. On 21.12.2010 the petitioner’s engagement was duly extended under the cost-sheet duly executed by the parties. It is stated that the petitioner have provided services under the Agreement and raised invoices every month as per the terms agreed by the parties from time to time. It is pleaded that under the invoices so raised, a sum of Rs.9,77,271/- remains unpaid. On 18.4.2012 a statutory notices was issued to the respondents calling upon them to pay the amount of Rs.12,17,555/- which includes interest on behalf of the pending dues. As there was no response the present winding up petition has been filed. Co.Pet.400/2012 Page 1 2.
3. I have heard learned counsel for the parties. Learned counsel for the petitioner has taken me through the Agreement dated 13.11.2009 and emails dated 21.7.2011 stating the same to be an admission of dues; and also the TDS Certificates to plead that in terms of the admission by the respondents and the amount of TDS deposited, there is no dispute about the outstanding dues of the petitioner.
4. Learned counsel for the respondent has denied the contentions of the petitioner. She states that as part of the agreement between the parties the petitioner was to provide the DG Set Operator. She submits that on account of negligence of the parties the DG Set exploded on 24.7.2011 which was replaced at a huge cost by the petitioner. Hence, she states that the respondent is entitled to offset its dues against the claim of the petitioner.
5. A perusal of the exchange of emails between the parties would show that on 21.7.2011 the petitioner’s employee Mr.Abdul has written an email to Mr.Sonu Varshney who represents the AGS Group which is the principal of the respondent pointing out that a sum of Rs.9,77,271/- remains outstanding on account of pending invoices details of which are given, Mr.Sonu Varshney on 21.7.2011 has written back to Mr.Javed, the General Manager of the petitioner with a copy to Mr.Amit Gupta who is said to be connected with the respondents confirming the outstanding dues i.e. Rs.9,77,271/-.
6. Similarly, the petitioner has also placed on record by an additional affidavit Form 26AS being the TDS deposited by the respondents. It is pleaded that the TDS deposited at Serial Nos. 161,168,169,170 and 171 of the said firm would add up to the outstanding amount payable by the respondent meaning thereby that for the said outstanding dues the Co.Pet.400/2012 Page 2 petitioners have also deposited the necessary TDS.
7. Learned counsel for the respondent has, however, referred to emails dated 18.8.2010 wherein some complaints have been made to the petitioner regarding the conduct of the technical staff. It is further stated that on 24.7.2011 the DG Set installed in the Mall exploded and was rendered defunct. It is stated that the expenses respondent incurred replacing the DG Set is far more than the amount namely, Rs.9,77,271/-.
8. In the reply to the petition, an averment is made by the respondent company that it appears to be a mishap occasioned by the negligence of the petitioner company staff who were deployed in the said Mall. On a query made by the court to learned counsel for the respondent as to whether any communication was sent to the petitioners after 24.7.2011 pointing out to the petitioners that the DG Generator Set exploded due to negligence of the technical staff the answer was in the negative inasmuch as no such email has been placed on record.
9. Taking into account the above, in my opinion, merely because there was same problem in 2010 regarding the technical staff that was deployed cannot ipso facto mean that it led to an explosion of the DG Set in 2011. There can be various reasons as to why there was a problem with the DG Set. In any case immediately after the explosion there has been no communication with the petitioner pointing out to the petitioner that its staff was negligent and was the cause of the said explosion in the DG Set. In the absence of any contemporaneous communication in this regard the plea of the respondent can only said to be an afterthought.
10. I may also note that the petitioner has sent a legal notice to the respondent on 18.4.2012. Receipt of this notice is not denied by the Co.Pet.400/2012 Page 3 respondents in their reply. Admittedly, there was no response to the statutory legal notice.
11. Reference may be had to the judgment of this Court in Resham Singh & Co. P. Ltd. vs. Daewoo Motors India Ltd., 2002 SCC Online Del 1274 where this court held as follows:-
"“3. I shall first deal with the consequences of the Respondent's failure to send a Reply to the Statutory Notice. The reliance of Mr. Valmiki Mehta, Learned Senior Advocate appearing for the... Petitioner
on the above-mentioned decisions of my Learned Sister Usha Mehra, J.
is somewhat exaggerated. The decisions do not inexorably lead to the conclusion that Winding-up Orders must unvariably be passed where no response to a Statutory Notice has been made. From my understanding of the judgment my Learned Sister had taken the failure to reply to the notice as an important factor in determining whether a bona fide defence had been put forward. In the circumstances of both the cases, she preferred to view the defence as an afterthought and as being bereft bona fide. In CP2202001 entitled H.B Stock Holdings Ltd. v. Associated Infotech Ltd., I have favoured the opinion that where no response had been made to the statutory notice the Respondent Company runs the risk of a winding-up petition being admitted for hearing at the threshold stage itself. Normally, the Company Judge consider it prudent in the first instance to issue notice to the Respondent so that its defence to the possible far-reaching and fatal winding-up orders can be considered. The admission of the Petition at its first hearing is possible because, by virtue of Section 434 of the Companies Act, a presumption of the indebtedness can be legitimately drawn by the Court where no Reply to the statutory notice is forthcoming. The risk of the admission of the Petition, as well as the appointment of a Provisional Liquidator is thus broodingly and ominously present in all those cases where the Respondent Company neglects to send any Reply to the winding-up notice. But this is as far as the danger extends. My attention has been justifiably drawn to the decision of the Single Judge of this Court in Vimco Ltd. v. Sidvink Properties (P) Ltd., 1996 Vol. 86 Company Cases 610, where it has been held by P.K Bahri, J.
that where a bona fide dispute had been shown to Co.Pet.400/2012 Page 4 the Court, the question of applying the deeming provision should not automatically arise. I continue to be in respectful agreement with this view. Applying this ratio to the facts of the present case, without in any manner diluting or undermining the significance of the failure of the Respondent Company to respond to the statutory notice, this factor will be duly kept in perspective when the conspectus of facts is considered.” 12. In the aforesaid facts, in my opinion, show that the amount as claimed by the petitioner is legally and validly due from the respondent.
13. Accordingly, I admit the present petition. The Official Liquidator attached to this Court is appointed as the Provisional Liquidator. He is directed to take over all the assets, books of accounts and records of the respondent-company forthwith. The citations be published in the Delhi editions of the newspapers ‘Statesman’ (English) and ‘Veer Arjun’ (Hindi), as well as in the Delhi Gazette, at least 14 days prior to the next date of hearing.
14.... Petitioner
shall deposit a sum Rs.75,000/- towards cost of the publication with the Official Liquidator within 2 weeks, subject to any further amounts that may be called for by the liquidator for this purpose, if required. The Official Liquidator shall also endeavour to prepare a complete inventory of all the assets of the respondent-company when the same are taken over; and the premises in which they are kept shall be sealed by him. At the same time, he may also seek the assistance of a valuer to value all assets to facilitate the process of winding up. It will also be open to the Official Liquidator to seek police help in the discharge of his duties, if he considers it appropriate to do so. The Official Liquidator to take all further steps that may be necessary in this regard to protect the premises Co.Pet.400/2012 Page 5 and assets of the respondent-company. The OL will also seize all the bank accounts of the respondent.
15. However, in the interest of justice, I suspend the aforesaid order appointing the OL as the Provisional Liquidator for a period of four weeks. In case the respondent makes necessary payment of the said sum of Rs.9,77,271/- within four weeks from today alongwith interest @ 6% per annum from the date of the legal notice till date of payment the aforenoted order appointing the OL as the Provisional Liquidator shall stand revoked.
16. List on 5.9.2019. JAYANT NATH, J MAY06 2019/n Co.Pet.400/2012 Page 6