Om Packages Vs. Agro Dutch Foods Ltd. - Court Judgment

Excerpt:
- haryana urban(control of rent and eviction)act,1973[har.act no.11/1973] -- section 4(2)(b): [m.m. kumar, hemant gupta, ajay & kumar mittal, jj] determination of fair rent held, the fair rent of building under the section is to be determined on the basis of rent agreed between landlord and tenant preceding the date of application. in the absence of rent agreed between parties the basic rent is required to be determined on the basis of rent prevailing in locality for a similar building or rented land on the date of application. if on the date of filing of the application under section 4 of the act for determination of fair rent, the agreed rent was still in vogue thus, it has to be regarded as the basic rent and the same would be constituted as the basis for determining fair rent. thus, where rs.500/- was paid as rent by tenant to the landlord, the same would be regarded as agreed rate of rent and the agreed rate of rent has to be regarded as basic rent within the meaning of section 4(2)(b) of the act in the process of fixing fair rent irrespective of the fact whether the lease period stipulated in a lease deed has expired.swatanter kumar, j.1. om packages, a partnership concern, has filed this petition under sections 433, 434 read with section 439 of the companies act, 1956 ('the act'), with a prayer that agro dutch foods limited, a company duly incorporated under the provisions of the companies act, be ordered to be wound up on the ground that it has failed to pay the debts in spite of demand.2. according to the petitioner, the petitioner-firm is engaged in manufacturing of paper cartons and supplies the same against orders. after some negotiations and correspondence between the parties to the present case, the petitioner agreed to supply cartons of specifications asked for (5,000 cartons) at the rate of rs. 18 per carton, as confirmed in the letter dated 16-2-1995, copy of which is annexed as annexure p-3 to the petition. in furtherance of the said letter, the petitioner manufactured 5,146 cartons and delivered the same to the respondent-company. out of these cartons, 1,636 were accepted and 3,510 were rejected and sent back to the petitioner. like this, various orders were placed. the orders placed and details of supply made by the petitioner are stated in the petition as under:sl. no.bill no.dateamount(rs.)qty.1.168827-3-199572,000.004,000p-42.168927-3-199520,628.001,146p-53.110326-5-199552.920.002,940p-64.116422-6-199588,200.004.900p-75.121414-7-199581,000.004,500p-83. the petitioner in all claims to have supplied 17,486 cartons, out of which 3,510 cartons were rejected. the value of the supplied cartons have been stated to be rs. 2,51,568, goods were supplied on credit basis. as the payment of the complete material supplied by the petitioner was not released by the respondent-company, the petitioner had been demanding the amount in writing and otherwise. it is contended that the respondent-company though has been admitting its liability but failed to repay the amount. ultimately the petitioner served registered notice dated 22-12-1995, demanding the release of the due amount against the bills (copies of which have been annexed as annexures p-4 to p-8 to the petition). it is stated by the petitioner that s.t. 22 forms were supplied by the respondent-company against the supplies made by the petitioner. still the respondent-company failed to make the complete payment. the respondent-company had only paid a sum of rs. 50,000 vide cheque no. 0281580 dated 15-7-1996, which was received by the petitioner on 18-7-1996, and the same was encashed. the balance payments were not made in spite of legal notice served upon the respondent-company. as such the respondent-company is stated to be commercially insolvent. the following amounts, as claimed by the petitioner, are due from the respondent-company :(rs.)(i)amount due for goods supplied2,01,568.00(ii)10 per cent as sales tax25,156.80(iii)interest72,558.00total2,99,282.80.'4. consequently, the present winding petition has been filed, as the petitioner has failed to recover the aforestated amounts.5. notice of this petition was issued to the respondent-company vide order dated 22-1-1998. the learned counsel for the respondent-company had appeared, filed a reply on behalf of the respondent-company and contested the petition.6. in the reply filed on behalf of the respondent-company, the amount claimed by the petitioner was specifically disputed. it was stated that the goods supplied by the petitioner were totally defective and were beyond the specifications prescribed. the rejected material was lifted by the petitioner as is clear from the fax dated 19-7-1995. it is specifically stated that the material supplied was not as per approved samples and was substandard in quality. the respondent-company claims to be an export-oriented unit and has to compete in the international market. as the goods were not as per specification, the same were rejected and the petitioner was duly informed by the respondent-company and the petitioner-company failed to lift the rejected material in spite of request and as such the respondent-company is not under obligation to pay any amount. in paragraph no. 12 of the reply, it is stated that the matter was decided amicably and accordingly a sum of rs. 50,000 paid by way of cheque was duly accepted and encashed by the petitioner-company. as such the petitioner has no cause of action against the respondent-company.7. from the above narrated more or less undisputed facts, it is clear that there was an agreement between the parties to supply the goods. the rate was fixed and also that the material to some extent was rejected and there was a dispute of payment between the parties. certainly a sum of rs. 50,000 has admittedly been paid by the respondent-company to the petitioner. the present winding petition raises serious questions of dispute which cannot be settled without recording evidence in regard to the matters in controversy. the nature of serious and complex dispute between the parties is even clear from the fact that the supplies were admittedly rejected by the respondent-company but it is to the extent of material which was rejected. to determine the exact amount of rejected goods and further whether the petitioner failed to lift the materials in spite of request, are the basic and serious questions of dispute. from the averments made in paragraph no. 5 of the petition, it is clear that all alleged supplies were made prior to 15-7-1995, and in the letter dated 18-7-1995, the petitioner had admitted to the rejection and lifting back of the material. the relevant part of the said letter reads as under :'we further draw your kind attention towards the payment of our bill no. 1103 dated may 26,1995, and bill no. 1164 dated june22,1995. kindly expedite the release of the payment of the abovesaid bills by bank draft and oblige. we also submit below our account of the corrugated boxes which were rejected by you and have been lifted back by us. sl. no.bill no.dateno. of ctnstotal1.168827-3-199540002.168927-3-199511465146 ctns rejected ctns sent back to us 3510 ctns vide your challan no. 143 dated july 15, 1995. balance ctns used by you 1636 ctns amount to be paid by you at rs. 18 per ctns rs. 29,448. you are therefore requested to release this amount of payment. we once again assure you best of our co-operation. regards.(sd.).' 8. vide fax dated 19-7-1995, the respondent-company had not only pointed out the defects in the supplies but had even disputed the rate for the cartons, which were supplied by the petitioner.9. it will be proper to refer to the entire fax message dated july 19, 1995, which was sent by the respondent-company to the petitioner and the copy thereof has been annexed as annexure p-11 to the petition :'dear sir, refer to your fax dated 18-7-1995. i had asked you in my previous fax the rate of white duplex board ctns. i had also mentioned that we want inner as well as outer board to be white. do give me the rates for these cartons and the availability time. also do note we could only load 3510 ctns in your truck which had brought ctns from ludhiana. we have got balance stock of ctns lying with us. so arrange to get them lifted as soon as possible. i have already spoken to accounts department regarding your payments. regards.(sd.).' 10. again after due exchange of various letters and meeting between the parties, vide fax dated 25 -9-1995, the respondent-company informed the petitioner that their representative mr. ram pal mehra had visited the works and had seen the material, he had given clear picture regarding the payments. it was also intimated in the said letter that all three consignments were over sized and he was informed that if the material is not lifted back within 15 days from the date of the meeting, the material would be destroyed. with regard to the payments due, it was stated that the date of the payments would be given 5-10-1995, as the managing director of the company was out of station.11. as already noticed, a sum of rs. 50,000 was paid by the respondent-company to the petitioner on 15-7-1996, which is alleged to be the full and final payment by the respondent-company but is disputed by the petitioner. no doubt the petitioner is claiming the payments all through and have even served the requisite notice, which is stated to be a notice under sections 433 and 434, on 20-4-1996, copy of which is annexed as annexure p-19 to the petition. admittedly, payment of rs. 50,000 which is alleged to be full and final payment, was made in july, 1996. it is a settled principle of law that notice, which should form the basis of the winding up petition, should be for the amount for which the petition is filed. in other words, the amount actually due and claimed by the petitioner should be the one mentioned in the notice. the notice not only lacks in regard to the figures but also contends as to what transpired between april, 1996 to july, 1996, when the last payment was made. the winding up petition has been filed on 19-1-1998, after a considerable delay. a winding up petition is not a mode of recovery, if not an alternative mode of recovery simpliciter. the winding up proceedings are serious proceedings and must be taken out without unreasonable delay. on certain cause, it is not possible for this court to reconcile the averments made in the notice and the petition. a notice for claiming the payment and for institution of a winding up petition in default thereof is the very foundation of a winding up petition and, therefore, it must adhere to the basic ingredients of the section and unreasonable delay should never be considered favourably. it would be more so when the facts are seriously disputed and the documentary evidence imbalances the case of the petitioner against the grant of relief. in the present case, the notice appears to be lacking in basic material facts and figures. its service is not even admitted. thus, prima facie, i am of the view that the notice served and an unreasonable delay on the part of the petitioner in filing the present petition and approaching the court for such serious relief leads to adverse inference against the petitioner. reference in regard to the point of the notice can be made to the judgment of this court in the case titled as daulat ram & co. v. sutlej finance (p.) ltd. [1989] 2 plr 283. furthermore, during the course of hearing, it was conceded by learned counsel for the petitioner that they have already filed a regular suit in the court of competent jurisdiction and the said suit is pending and is being contested by the respondent-company.12. the suit is obviously based upon the bills aforementioned and is for the recovery of the same amount, which has been claimed in this winding up petition by the petitioner.13. the learned counsel for the petitioner relied upon the judgment of the calcutta high court in the case titled as andrew, yule & co., in re air 1932 cal. 879, to argue that the goods would be deemed to have been accepted by the respondent-company, as they were not returned to the petitioner.14. this is a very serious controversy which needs to be adjudicated upon, after granting opportunity to the parties to lead oral and documentary evidence. the respective case of the parties on this issue is totally distinct and different. in fact the picas taken by one party are totally different and distinct to the pleas taken by the other party. if the version of one succeeds, the other must fail in entirety. there is no doubt that the unpaid seller has no lien over the unpaid goods supplied but if he was paid on notice to lift the rejected material and he has failed, the position in law may be different. as i have mentioned, there are serious controversies which required detailed investigation into the cases pleaded by the respective parties, it would certainly require documentary as well as oral and if necessary, expert evidence to adjudicate the case before the court. that is certainly not the scope of a winding-up petition. a winding-up petition is a summary procedure and is not a substitute for an ordinary mode of recovery of the payment. in this regard, reference can be made to the cases titled as bukhtiarpur bihar light railway co. ltd. v. union of india [1954] 24 comp. cas. 507 (cal.), state trading corpn. of india ltd. v. punjab tanneries ltd. [1989] 66 comp. cas. 634 (punj. & har.), parmetex inc. hackettstown v. punjab concast steels ltd. [1994] 1 plr 503 and t. srinivasa v. flemming (india) apotheke (p.) ltd. [1990] 68 comp. cas. 506 (kar.).15. the dispute raised by the respondent-company cannot prima facie be termed baseless or totally mala fide. there is a possibility that the defence of the respondent-company may be reiterated as bona fide defence but this could only be determined by detailed and investigative evidence to be adduced by the respective parties.16. another factor which requires consideration by this court at this juncture is the unreasonable delay on the part of the petitioner in filing the present petition, i.e., with effect from 15-7-1996 to 19-1-1998, when the present petition was filed in this court. no correspondence whatsoever during this period has been placed on record. the conduct of the petitioner appears to be unnatural and disentitles the petitioner for invoking this special remedy available to a creditor under the companies act.17. in view of the discussion above and especially the fact that the petitioner-company has already filed a suit in the court of competent jurisdiction for the recovery of the same amount, i do not find any merit in this winding-up petition and the same is hereby dismissed, however, without any orders as to costs. it is clarified that the learned court dealing with the suit between the parties is expected not to be influenced by any observation recorded in this order.