September 24, 2015
Case decided on 7th August, 2014I. Case Note: Whether creditors can file a petition for winding up of a company under the Companies Act, 1956 (“CA 1956”), in case the respondent has not made payment for materials supplied by the Petitioner ? – No II. Brief Facts: The Petitioner (i.e., Ashok Aggarwal) has filed the present petition for winding up of the Respondent Company (i.e., Amitex Polymers Pvt. Ltd.) under Section 433 (e) of CA 1956. As per the Petitioner, the Respondent through its director had approached him for supply of various chemicals/materials in February 2011. The Respondent was to make payment upon receiving necessary invoices from the Petitioner for the supply of chemicals/materials, but has not paid even after making repeated requests to pay the balance amount. As a result of which the Petitioner has filed the present petition. The Respondent defended that the goods were returned to the Petitioner and placed on record rejection note, debit note and carrier’s receipt showing return of 246 bags. The carrier’s receipt mentions the rejection note number, vehicle number and the name of driver through which the goods were sent. However, the Petitioner is of the view that the documents filed by the Respondent are forged and fabricated and even the stamp, which is stated to be the stamp of the Petitioner, is not a stamp that is being used by the Petitioner Company and is a forged stamp. III. Decision: Appeal made by Mr. Ashok Aggarwal was dismissed on the following grounds: The jurisdiction of the Company Court is summary in nature and it is a settled proposition of law that where disputed questions of law are involved, the summary proceedings of winding up cannot be resorted to by the Petitioner. The winding up proceedings are not recovery proceedings and the powers to be exercised by the Court under Section 434 of CA 1956 being summary in nature are not to be exercised where disputed question of fact are involved requiring detailed evidence to be led by the parties. In the present case, the Respondent has set up a defence that the goods have been returned to the Petitioner. The Respondent has produced rejection note, debit note and carrier’s receipt to contend that the goods have been rejected and returned to the Petitioner. The rejection note and the carrier’s receipt contain a signature and stamp of receipt which is claimed to be that of the Petitioner. Whether the documents are forged and fabricated or whether the seal and stamp of the Petitioner is also forged and fabricated is something that would require a trial and adjudication. No doubt, if the said documents are found to be forged and fabricated, the law would take its course but there is nothing on record to prima facie reject the same. Since disputed questions of fact arise in the present petition which would require the parties to lead evidence on the issue of genuineness or otherwise of the rejection note, debit Note and the carrier’s receipt, in my view, the present petition would not be maintainable and the parties would have to prove their respective case before a competent civil forum. The Petitioner has already filed a suit for recovery. These aspects would be considered by the Civil Court before whom the said suit has been filed. IV. Conclusion: A creditor cannot file a petition for winding up of a company under CA 1956; who has failed to make payment for the materials supplied by him because the summary proceedings of winding up are not recovery proceedings where disputed questions of law are involved and the powers to be exercised by the Court under Section 434 of CA 1956 are summary in nature and not to be exercised where disputed questions of fact are involved.