This company petition for winding up was rejected as the respondent company was financially solvent and had raised a bona fide dispute regarding the authenticity of supply claims and the source of goods provided to it.
Winding up petition rejected and costs dismissed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
CP338-10.doc
JP CHAVAN
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
COMPANY PETITION NO. 338 OF 2010
In the matter of M/s Percept Picture Company, A division of Percept Limited, a Company registered under the Companies act, 1956, having its registered office at P-22, Level B-2, Raghuvanshi Estate, 11/12, S.B. Marg, Lower Parel (West), Mumbai 400 013 .... Respondent
Saikrupa Photo Offset Pvt. Ltd. A Company registered under the Companies Act, 1956, having its office at 114/A-2, Shah Nahar Industrial Estate, Sunmill Lane, Lower Parel (West), Mumbai 400 013
.... Petitioner
Mr. Nilesh Bhutekar for the petitioner
Mr. Sharan Jagtiani a/w Ms Anju Jhunjhunwala a/w Mr. Tushar Gujjar i/by Naik Paranjape & Co. for the respondent
CORAM : N. M. JAMDAR, J. DATE : 11 JULY 2013
P.C.
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producing movies theatre, etc. The respondent is a limited company incorporated under the Companies Act, 1956. Authorized share capital of the company is Rs. 25,00,00,000/-and paid up capital is 4,18,04,800/-.
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stated in the reply that Mr. Nayab shaikh has dealt with the petitioner in his personal capacity and the respondent company is initiating proceedings against him. Thereafter the petitioner filed the present petition.
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as per the orders placed from time to time. It was submitted that for these orders, the invoices were raised which were duly acknowledged. Even the delivery challans were acknowledged by the respondent company and without any justification, the amount is not being paid. The learned counsel submitted the petitioner is not concerned with the internal work of the respondent company neither with the internal circulars that have been issued or with the action that is taken by the respondent company against Mr. Shaikh. The learned counsel submitted that his claim is based purely on order placed and the goods supplied and the respondent has taken a false and frivolous defence to deny the payment to be made. The learned counsel submitted that invoices show that the goods were received by the person in charge which signature does not appear to be that of Mr. Shaikh. The learned counsel submitted defence taken by the respondent company that it had got the flex hoarding manufactured from another supplier is false as the order placed on the said supplier does not give any particulars whatsoever.
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purchase orders placed on record by the petitioner show delivery for 90 days, however delivery was effected on the same day. T he purchase order on 7 May 2009 bears No. 6769, while the subsequent purchaser order dated 10 July 2009 bears no. 6269 and since stationery form is same, the purchase order could not have been earlier than the serial number. and therefore these documents are doubtful. The orders have been placed in short period from 29 June to 4 August 2009. As against the e-mail orders of 80 hoarding, 180 hoardings were supplied. As far as the second order is concerned, the e-mail does not mention any rate. The learned counsel for respondent has drawn my attention to the delivery challans relied upon by the petitioner. The learned counsel has submitted that the delivery challans mention initial 'N' for Head of Business which initial ' N' is most probably of Mr. Nayab Shaikh. The learned counsel submitted that the entire correspondence relied upon by the petitioner is a suspicious exercise on the part of the petitioner and Mr. Nayab Shaikh so as to defraud the respondent company. The learned counsel submitted that in the written submissions the respondent has analyzed each and every e-mails to point out the suspicions nature of the documents. It is submitted that the respondent placed orders for flex hoarding for both movies i.e. Tasvir and Jail on another supplier M/s Shruti Arts. The learned counsel submitted that the orders placed on M/s Shruti Arts give specific details of the requirements and the payments made to M/s Shruti Arts have been reflected in the accounts of the respondent company as well as in the bank accounts. The learned counsel submitted that the respondent
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company has large turnover and is commercially solvent. The learned counsel submitted that the respondent has raised a bona fide dispute as regards the claim of the petitioner and no case is made out for winding up of the respondent company.
CP338-10.doc
considered in two parts, firstly that the documents relied upon by the petitioner are suspicious and have been created by the petitioner with collusion with Mr. Shaikh. Secondly that the goods were in fact supplied by another supplier M/s Shruti Arts.
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issued by Mr. Shaikh wherein, he has admitted that he had connived with the petitioner for creation of fabricated documents. It is also placed on record that Mr. Shaikh is now dismissed from service and a criminal complaint has been filed against him in the N.M. Joshi Marg Police Station, Mumbai. In the written submission the respondent has detailed various infirmities in the purchase orders. The purchase orders taken serially do not appear to be issued in chronological manner. Various e-mails that have been sent did not specify the rates. It appears from the perusal of the documents that the delivery is made before submitting of the purchase orders and orders of e-mail are without indicating any rate. The format of delivery challan differs in respect of several different orders.
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supplier M/s Shruti Arts. The respondent has placed on record the orders which have been placed on M/s Shruti Arts. The orders give details of the hoarding, size as well as area where they will be put up. The tax invoices raised by M/s Shruti Arts give specification of the job name giving quantity, rate, area in square feet. Along with the tax invoices, Shruti Arts has also given a chart giving details. The various delivery Challans and tax invoices from Shruti Art Ltd. has been placed on record. The delivery challan also specify the names of the films for which the flex hoardings were prepared. The respondent has placed on record the ledger accounts in which there are entries as regards concerned flex hoardings supplied by M/s Shruti Arts. The bank statements of the respondent company have been placed on record. There are entries as regards the payment made to M/s Shruti Arts. Thus the defence of the respondent company that the work was got done by some other supplier is supported by the documents. If the respondent wanted to to contend that the work is done by some other supplier, then the respondent would be required to place on record the orders and the payment, which the respondent has done. Considering these documents, it cannot be stated that the defence of the respondent that the respondent has got the work done from M/s Shruti Arts, is baseless and without any foundation. Thus, considering the factual circumstances narrated above and the legal position, it cannot be stated that the respondent has no defence whatsoever and is refusing to pay the admitted dues of the petitioner.
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450 employees and has 62 branches across the country and it is commercially solvent. Once it is placed on record that the respondent company is financially sound and is bona fide disputing the claim of the petitioner, then in such circumstances, the order of winding up is not warranted.
(N. M. JAMDAR, J.)
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3 issues framed by the court
Whether the defense raised by the respondent regarding collusion and fabrication is bona fide and plausible.
Whether the respondent is commercially solvent and financially sound to warrant refusal of winding up.
Whether the petitioner has made out a case for winding up the respondent company given the bona fide dispute.
Colour shows how this judgement treated each authority
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1 provisions across 1 enactments
Saikrupa Photo Offset Pvt. Ltd.
M/s Percept Picture Company
N. M. JAMDAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
