TaxTMI 
TaxTMI 
TaxTMI 
2011 (5) TMI 846
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....ge bills raised by the petitioner up-till 25-4-2009. But since 26-4-2009, the respondent dishonoured the petitioner's bills and accordingly an amount of Rs. 44,58,486 became due from the respondent. Thereafter, on 11-9-2009 a notice under section 434 of the Companies Act was served on the respondent company demanding payment of Rs. 44,58,486 (Rupees Forty Four Lakhs Fifty Eight Thousand Four Hundred Eight Six only) within three weeks from the date of receipt of the notice or else winding up proceeding under the Companies Act was threatened against the noticee. 4. In their response to the statutory notice, the respondent denied its liability to pay any amount to the petitioner and contended that due to misappropriation of goods during transit by the petitioner, an amount of Rs. 25,73,541 was due to them from transporter. A further amount of Rs. 51,55,336 was claimed to be payable by the petitioner for the damage suffered by the respondent due to short delivery and misappropriation of the construction materials. 5.1 Appearing for the petitioner, it is argued by Ms. M. Hazarika, learned senior counsel that assuming that there has been misappropriation of the construction materials d....
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....g the respondent's counter-claim, the invocation of the Company Court's jurisdiction is inappropriate in the present case. 6.2 The petitioner as the appointed transporter was responsible for safe transshipment of the construction materials to the factory site at Lumshnong and accordingly the counsel submits that they cannot pass on the responsibility for loss of the transiting materials, to the sub-transporters. The respondent having executed the carriage contract only with the petitioner, without involvement of any third party, the petitioner according to the respondent is solely responsible to compensate the loss in transit. 6.3 Mr. Sahewalla submits further that the respondent's defence is not an afterthought or a counter-blast to the winding up proceeding since at the very first instance, in its response to the statutory notice, the defendant projected it counterclaim for the loss of the materials carried by the petitioner as the transporter of the respondent company. 6.4 Referring to the debit note dated 31-7-2009 for Rs. 25,73,541 and the second debit note dated 3-8-2009 for Rs. 35,55,336, the learned senior counsel contends that as per the arrangement with the transporter....
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....has been exercised by the company over said amount against the petitioner who is liable to pay the same to the company in the following manner : Sl. No. Particulars Bill dates Amount 1. Idle working labour charges charged by M/S. Buildwell Constructions due to shortage of materials 13-9-2007, 8-4-2008, 15-8-2008, 24-6-2009 & 15-7-2009 11,14,766.00 2. Idle working labour charges charged by M/S. Venu Engineers due to shortage of materials 12-1-2008 10-5-2008, 12-9-2008, 30-2-2008, 19-9-2008, 7-3-2009 & 14-9-2009 10,78,918.00 3. Idle working labour charges charged by M/S. Anna Engineering Constructions Company due to shortage of materials 7-11-2007, 15-3-2008, 18-6-2008, 19-12-2008 & 12-9-2009 16,54,730.00 4. Idle working labour charges charged by M/S. New Asians Engineers & Contractor due to shortage of materials 9-11-2007, 24-4-2008, 15-7-2008, 20-12-2008 & 10-5-2009 13,06,918.00 Total 51,55,332.00 (xv) All the aforesaid contractors have raised their bills upon the company, on account of their idle labour charges, as aforesaid, and same was accrued only due to short supply of materials by the petitioner, in the project. Copies of afo....
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....ills, Meghalaya. (xvii) The men of the petitioners had confessed and admitted by issuing a letter of admission of their misdeeds and copies of the same are annexed hereto and marked as ANNEXURE-D. (xviii) That the company have came to know the aforesaid facts, from the men of the complainant, and on 2-7-2009 and another on 22-7-2009, two separate FIRs have been filed against the men of the petitioner as well as against the Agarwal Carrying Corporation. Copies of said FIRs lodged by the company against the men of the petitioner as well as against the petitioner dated 2-7-2009 and 22-7-2009 are annexed hereto and marked as ANNEXURE- E&F respectively." 9. As regards 'idle labour' charge suffered by the respondent for short delivery of the construction materials, the petitioner is correct in saying that some of the bills referred by the respondent pertain to the years 2007 and 2008 and the entire amount claimed against "idle labour" component, may not be attributable to the default of the transporter. But, the precise amount of extra cost that the respondent had to incur for default of the petitioner, is a matter of evidence and the Company Court is obviously not the appropriate for....
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....ich the dispute can only be adjudicated by a trial in a Civil Court. 14. The Company Court while exercising powers under sections 433 & 434 of the Companies Act is not in a position to decide who defaulted in discharging its obligation under the contract, which calls for detailed examination of various aspects of the objection and also examination of evidence. It may also involve interpretation of the terms and condition of the agreement amongst the parties. 15. It must also borne in mind that a party to the dispute should not be allowed to use the threat of winding up petition as a means of forcing the company to pay a bona fide disputed debt, especially when the aggrieved party has alternate remedy in different forum. The jurisdiction of the Company Court can't be permitted to be abused by entertaining winding up petition to put pressure on a company to pay disputed debts since entertainment of such petition and its advertisement, certainly damages the companies credit-worthiness and its reputation amongst its customers and public. The Company Court, therefore, should act with circumspection, care and caution and decide at first instances whether, a substantial dispute is raise....