Bramdz Storm India Marketing Private Limited v. Zenith Metaplast Pvt. Ltd. - U28129mh1994ptc081864
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.123 OF 2013 Brandz Storm India Marketing Pvt. Ltd.
....Petitioners V/s.
Zenith Metaplast Pvt. Ltd.
....Respondents ---- Mr.Faran Khan i/by Satyanarayanan for the petitioners. Mr.Rajan Pawar i/by Mr.Shriram Kulkarni for the respondents. ---- CORAM : K.R.SHRIRAM,J DATE : 23.11.2015 P.C.:- The petitioners had placed an order for 1000 pieces of bags to be manufactured and supplied by the respondent-company for a price of Rs.36,29,924.38/- pursuant to the purchase order dated 1.9.2010. Prior thereto based on the exchange of correspondence between the parties the respondents had raised a proforma invoice dated 11.8.2010 in which the payment terms were mentioned as 50% advance and balance 50% before delivery. Admittedly, the petitioners gave a sum of Rs.15,00,000/- as advance to the respondent-company. It is the case of the petitioners that they were informed by the respondents that the bags were ready to be collected and when the petitioners' representative took inspection of the bags, they found that the bags did not match their requirement and were
rejected. It is also stated that the petitioners gave an offer to the respondents that they could correct the defects and supply the bags. According to the petitioners the respondents did not and therefore, they are entitled to get back advance of Rs.15,00,000/- paid. It is also stated that the petitioners through their Advocate sent a notice dated 30.8.2012 under Sections 433 and 434 of the Companies Act 1956. However, no reply has been received and as the outstanding dues by the petitioners are admitted by the respondent-company and in view of the failure on the part of the respondent-company to clear the outstanding liability, it is a clear indication of the company's inability to pay the debt in the ordinary course of business and it is a fit case that the company should be wound up. This petition has been lodged on 8.11.2012.
The respondents strongly contest the claim. Not only that, it is also stated in the affidavit in reply that the respondents never received the statutory notice dated 30.8.2012 and hence, the petition was premature. It is further stated that in fact the respondents had sent to the petitioners a notice dated 5.2.2013 under Section 434 of the Companies Act 1956.
taken delivery of only 50% of the bags and the balance bags are neither taken delivery of nor payment made. It is the case of the respondents that they had supplied to the petitioners almost 50% of the bags in three consignments. The first one on 7.3.2011 and the 2nd and 3rd on 13.3.2011. The respondents have annexed copies of their delivery challan and tax invoices along with lorry receipts to the affidavit in reply. The lorry receipts have rubber stamp "received goods for Brandz Storm India Marketing Pvt. Ltd." The invoice value of these 3 consignments is Rs.17,42,366/-. The respondents state that they having supplied goods worth Rs.17,42,366/- to the petitioners, the question of paying back Rs.15,00,000/- to the petitioners does not arise. The respondents are also claiming storage charges for the balance uncleared goods as well as cost of those goods.
The counsel appearing for the petitioners states that in the rejoinder the respondents have denied having received any consignment. According to them the delivery challan and transporter driver's copies are all forged and made up documents. It is settled law that in a winding up petition it is the duty of the court to examine whether the company has a genuine dispute to
the claimed debt or not. The Apex Court in the matter of 1IBA Health (India) Private Limited Vs. Info-Drive Systems Sdn. Bhd. has dealt with this issue in detail. The Apex Court has held that a dispute would be substantial and genuine if it is bonafide and not spurious, speculative, illusory or misconceived. It is also stated that the company court is not expected to hold a full trial of the matter. It must decide whether the grounds appear to be substantial. It is also settled law that if the creditor's debt is bonafide disputed on substantial grounds, the court should dismiss the petition and leave the creditor first to establish his claim in an action, lest there is danger of abuse of winding-up procedure.
It is also settled law that a winding up petition is not a legitimate mean seeking to enforce payment of the debt which is bonafide disputed by the company. (2Amalgamated Commercial Traders Vs. A.C.K.Krishnaswami & Anr.) This was followed in the 3Mediquip Systems P.Ltd. Vs.Proxima Medical System wherein the Apex court held that the defence raised by the appellant company was a substantial one and not mere moonshine and was to be finally adjudicated upon on merits by the appropriate forum. In this case the petitioners are seeking refund of Rs.15,00,000/- paid as advance.
that they had supplied goods to the petitioners for value in excess of Rs.15,00,000/-. They have also annexed delivery challan and transporter's consignment note, on which there are endorsement of receipt by the petitioners. It is also settled law that a company court is not expected to hold a full trial of the matter to ascertain whether goods are delivered or not. It is also stated that the statutory notice was also not received.
Taking into account the overall situation, it is not possible for me to hold that the defence raised by the company is not bonafide but spurious, speculative, illusory or misconceived. It is also not possible for me to conclude that the ground of dispute is a mask to deprive a creditor of just and honest entitlement. In the circumstances, the petition stands dismissed. (K.R.SHRIRAM,J)
CERTIFICATE Certified to be true and correct copy of the original signed Judgment/Order.