Sudershan Kumar Misra, J.@mdashThis petition for winding up of M/s Radhika Fibres (India) Ltd. is predicated on the non-payment of an amount of Rs. 10,86,858/-, allegedly owed by the respondent to the petitioner in respect of services supplied by the petitioner to the respondent.
2. Active Enterprises Pvt. Ltd., i.e. the petitioner herein, is in the business of repair and maintenance of diesel sets of various makes/models. The respondent, Radhika Fibres (India) Ltd., is in the business of spinning, weaving, knitting, manufacturing and otherwise dealing in fabric and fabric items.
3. It is the petitioner''s case that the respondent availed of its services for repair of the respondent''s Diesel Generator Set (DG Set) of 1250 KVA. The petitioner says that it executed the said repair work and duly installed the DG Set in working condition, on 6th June, 2006 at the respondent''s work site, in the presence of its engineer, its foreman and its Vice-President.
4. In respect of this service, the petitioner raised Invoice No. 27 dated 12th June, 2006 for an amount of Rs. 15,86,858/-, against which the respondent had admittedly paid an amount of Rs. 5,00,000/- as advance payment, leaving a net balance of Rs. 10,86,858/- due and payable by the respondent to the petitioner.
5. However, the petitioner received a letter dated 29th July, 2006 from the respondent, saying that the aforesaid DG Set seized and broke down after 73 hours of functioning. By the same letter, the petitioner was also informed that the respondent was arranging a meeting on 4th August, 2006 with a representative of the manufacturer, Cummins Diesel Sales & Service India Ltd., to examine the fault in the machine, and inviting the petitioner to attend the meeting. This meeting did not fructify. The respondent then sent another letter dated 8th September, 2006, again informing the petitioner that a similar meeting had been fixed for 13th September, 2006, and that the petitioner was again invited to attend the aforesaid meeting. In its reply dated 12th September, 2006, the petitioner expressed its inability to attend the meeting and requested the respondent to postpone the same. However, the respondent is stated to have gone ahead with the meeting.
6. At the meeting, M/s Gulati Diesels, an authorized agent of Cummins Diesel Sales & Service India Ltd., concluded that the breakdown in the DG Set occurred because of improper repairs carried out by the petitioner, as well as lack of proper care whilst overhauling the DG Set.
7. The respondent intimated this to the petitioner by the a letter dated 26th September, 2006, and also took the position that since it had suffered losses on account of the DG Set''s breakdown, which, as per M/s Gulati Diesel''s report, was due to the laxity of the petitioner, therefore, it also had a valid claim for compensation in this regard. To this, the petitioner responded by a letter dated 10th October, 2006, stating, inter alia, that it did not agree with the aforesaid report of M/s Gulati Diesel, because its representatives were not present at the meeting held on 13th September, 2006.
8. Thereafter, the petitioner served the respondent with a statutory notice of winding up dated 7th August, 2007, claiming the balance amount of Rs. 10,86,858/- in respect of the cost of repair of the DG Set. Proof of service of the aforesaid notice at the registered office of the respondent has been placed on record.
9. The respondent replied to the aforesaid notice of winding up by a letter dated 13th August, 2007. In essence, the respondent''s stand is that it had approached the manufacturer, Cummins Diesel Sales & Service India Ltd., who thereafter deputed its own authorized agent, namely, M/s Gulati Diesels, to inspect the equipment and the latter had concluded that the seizure of the machine had occurred due to a fault of the petitioner in its repair and maintenance work, entailing consequential losses also, and that, therefore, the respondent''s liability to make any payment in respect of the repair work done by the petitioner is disputed.
10. Admittedly, the DG Set was installed on 6th June, 2006 after the repairs in question and by 29th July, 2006, the respondent had written to the petitioner stating that the DG Set had broken down. Clearly, the DG Set had stopped functioning very shortly after the petitioner installed the same at the respondent''s work site. I notice that, in paragraph 3 of the winding up notice dated 7th August, 2007, as well as in paragraph 4 of the winding up petition; and in paragraph 5 of CA No. 1123/2007 which prays for the appointment of a provisional liquidator, the petitioner repeatedly alleges that no complaint was received by the petitioner "till the 3rd week of June, 2006". This indicates that after the third week of June 2006 itself, the petitioner may have been aware of the breakdown of the DG Set.
11. Be that as it may, the fact remains that the said DG Set of 1250 KVA had clearly required extensive repairs, at a cost of approximately Rs. 16 lakh. The expected life of the set after such extensive and expensive repairs must necessarily have been substantial. Normally, one does not expect it to stop functioning within 73 hours. The fact that it did so is certainly a matter which requires a trial to determine who is responsible for the seizure and break down of the machine. Other issues such as, refund, damages, compensation etc. are also bound to arise. Under the circumstances, I am not convinced that this is a matter for the exercise of the Company Court''s jurisdiction u/s 433 and 434 of the Companies Act, 1956. To my mind, there is a genuine dispute about the debt claimed.
12. Keeping in view, inter alia, the decision of the Supreme Court in
Co. Appln. No. 1123/2007
13. In view of the orders passed in the main petition, this application is rendered infructuous and the same is disposed of as such.
