TaxTMI 
TaxTMI 
2012 (12) TMI 1249
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....turnkey projects. The respondent is a company registered under the Act on 19.1.1992 with its registered office at Hyderabad. The authorized share capital of the respondent is Rs. 60.00 crores divided into 6.00 crore equity shares of Rs. 10/- each. Its issued, subscribed and paid up capital is Rs. 38,83,75,000/- divided into 3,88,37,500 equity shares of Rs. 10/- each. The main objects, for which the respondent was incorporated, are to carry on business of spinning cotton, viscose, synthetics and blended yarn cone and hank form; to carry on liaison work, act as agents, distributors, stockists and to represent manufacturers, producers, mills, power-looms, handlooms, exporters and importers of cotton yarn and cotton waste, viscose, synthetic textiles, textile goods, various allied items, ready made garments, colours and chemicals, various machineries, electrical items, equipment, spare parts or allied products to be marketed in India for both Indian and foreign companies, firms, merchants and individuals. For the spinning mill, then being set up at Sanghinagar, the respondent requested the petitioner to install and commission piping etc., for compressed air, cooling water, etc., for....
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....he amounts admittedly due and payable to them in the ordinary course of business, and had rendered itself liable for being wound up; the respondent was in a bad financial position, and was unable to pay its admitted dues; the respondent was unable to pay its debts generally, and was commercially insolvent; and it would, therefore, be in the interests of the creditors to have the respondent wound up. In their counter affidavit, the respondent would contend that the petitioner's sister concern M/s Albaz Engineering Corporation was required to supply material which the petitioner was required to install, test, and render other services; as M/s Albaz Engineering Corporation failed to supply material, no work was executed and the entire work was incomplete; there was no assurance or promise to make payment; merely because final invoice dated 30.10.1998 was raised did not mean that the respondent was liable to make payment; the respondent and its consultants did not agree on the certificate dated 28.12.1998 regarding the value of the work; the said certificate shows that it is only a running bill, and only a payment of Rs. 21.00 lakhs and odd was recommended; this payment certificate ....
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....y sophisticated equipment such as computers, and other civil works for Rs. 1.00 crore; the respondent had entered into a contract with L & T for construction of a part of the chiller plant; L & T had completed the work, and the respondent had to pay them for the work done; the petitioner had breached the contract necessitating the respondent to complete all the work incidental to the work required to be executed by the petitioner; the petitioner had abandoned the project in 1996, and was now pressurising them for payment; the petitioner's claims are barred by limitation as the agreement was entered into on 1.9.1995 and, while they claim that the work was completed in 1996, the Section 434 notice was issued only on 29.8.2000; and the company petition has been filed only to harass the respondent. The company petition was admitted on 28.3.2002. However publication was deferred to enable the respondent to pay the debts due to the petitioner. Thereafter, by order dated 24.4.2002, this Court permitted the petitioner to take out publication of admission of the company petition, as stipulated in Rule 99 of the Companies (Court) Rules, 1959, in Indian Express (English daily) and Vaartha ....
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....ndent demanding payment of the amount due latest by 30.09.2000; Ex.A-6 is the notice dated 29.08.2000 issued to the respondent under Section 434 of the Companies Act. Ex.A-7 is the reply letter dated 27.09.2000 issued by the respondent to the petitioner's notice dated 29.08.2000. In cross-examination, P.W-1 stated that the petitioner was a registered partnership firm. He, however, admitted that he had not filed any document to show that the petitioner was a registered partnership firm. He denied the suggestion that the petitioner was not a registered partnership firm. He also denied the suggestion that he was not a partner of the petitioner firm. He admitted that the petitioner was liable to pay the amount since 1996, the work was completed in December, 1996, and they did not file the correspondence with the respondent from 1996-98. He admitted that he had denied the suggestion that Ex.A-3 had been fabricated for the purpose of this case. He admitted that Ex.P-1 contains a condition that the disputes, if any arises, would be resolved by arbitration. He also admitted that Ex.A-2 did not reflect the final invoice i.e., Ex.A-3. He denied the suggestion that his claim was barred by ....
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....nd did not perform their obligations under the contract. Except for a vague denial the petitioners' assertion, both in their notice dated 27.7.2000 and in the statutory notice dated 29.8.2000, that a final invoice dated 30.10.1998 was raised by the petitioner has not been denied by the respondent. Except for a mere suggestion in cross-examination, the oral evidence of P.W-1 that the last payment made by the respondent on 16.04.1999 was for Rs. 5,39,058/- has not been rebutted by way of any evidence adduced by the respondent. The respondent has not denied the petitioner's assertion, in their letter dated 27.09.2000 (Ex.P-7) sent in reply to the statutory notice, of their having accepted the final invoice dated 30.10.1998. As the final invoice dated 30.10.1998 for Rs. 48,53,443.65 ps has been accepted both by the respondent and their consultants; as the evidence of P.W-1, that the last payment made by the respondent of Rs. 5,39,058/- was on 16.04.1999, stands unrebutted by any evidence being adduced to the contrary; and as the said amount has, admittedly, not been paid despite issuance of the statutory notice in Ex.P.6 dated 29.8.2000; the legal fiction under Section 434(1)(a) operat....
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.... the respondent, and around two years of the part-payment made by the respondent on 16.4.1999, the petition has been filed well within three years and, as such, is not barred by limitation. Sri C. Raghu, Learned Counsel for the respondent, would further contend that the company petition has been filed by an unregistered firm; and such a petition is barred under Section 69 of the Partnership Act. P.W.1 has, in cross-examination, denied the suggestion that the petitioner is an unregistered firm, and has stated that it is a firm registered under the Partnership Act. Even if we were to proceed on the premise that the petitioner is an unregistered partnership firm, the question is whether a petition for winding up, filed by an unregistered partnership firm, is barred under Section 69 of the Partnership Act. Section 69 of the Partnership Act bars, at the very inception, a suit filed by an unregistered firm against a third party for enforcement of any right arising from a contract with such a third party. To attract the bar, the following conditions must be satisfied: (i) on the date of the suit the plaintiff-partnership firm must not be registered under the provisions of the Partnersh....
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.... the said firm, but has instituted a winding-up petition against the company which is a third party. The first limb of Section 69(2) of the Partnership Act refers to the institution of a "suit". A petition for winding up, filed by the unregistered firm, is not a "suit" within the meaning of Section 69(2) of the Partnership Act. In a winding up petition, the court is only required to decide whether the company is commercially solvent or insolvent, and the lis is not merely between the petitioning creditor and the company sought to be wound up. Once the petition is admitted, the creditors, contributories, shareholders etc. seek redress in the proceedings, and can even oppose the winding up of the company. On the company being directed to be wound up, the assets of the company are taken over and distributed in accordance with the provisions of the Companies Act, and the rules made thereunder, which is a complete code by itself. All steps taken in a winding up proceedings are in public interest. This right, to have a company wound up, cannot be construed to be a right arising from a contract between the petitioning creditor and the company. A winding up petition is not filed to enforce....