Com. Pet. No. 7/2013. Case: Walchandnagar Industries Limited Vs JUD Cement Ltd.. Meghalaya High Court

Case NumberCom. Pet. No. 7/2013
Party NameWalchandnagar Industries Limited Vs JUD Cement Ltd.
CounselFor Appellant: K.K. Mahanta, Sr. Adv., K. Singh and K.M. Mahanta, Advs. and For Respondents: K. Paul and R. Dutta, Advs.
JudgesT. Nandakumar Singh, J.
IssueNegotiable Instruments Act, 1881 - Section 138
Judgement DateJanuary 15, 2016
CourtMeghalaya High Court

Judgment:

T. Nandakumar Singh, J.

1. Heard Mr. KK Mahanta, learned senior counsel assisted by Mr. K Singh, learned counsel appearing for the petitioner and Mr. K Paul, learned counsel for the respondent-company.

2. The prayer sought for in the present application under Sections 433, 434 and 439 of the Companies Act, 1956 are:--

(a) That M/S JUD Cement Ltd., the Respondent-Company be wound up by the order of the Court under the provisions of Section 433 (e) read with Section 433 (f) of the Companies Act, 1956.

(b) Official Liquidator attached to this Hon'ble High Court, be appointed as Liquidator of the Company with all powers under the provisions of the Companies Act, 1956, with powers to take charge and possession of the assets, properties, books and records of the company and to manage its affairs forthwith.

(c) Cost of this petition be provided for.

(d) Such further and other orders be made and direction be given as this Hon'ble High Court may deem fit and proper in the facts and under the circumstances of the matter.

And for which act of kindness the humble petitioner is as duty bound shall every pray.

3. The respondent-company namely, M/s. JUD Cement Limited was incorporated on 04.07.2005 under the provisions of the Companies Act, 1956 as a Private Company Limited. The respondent-company was earlier known as JUD Cements Private Limited. The registered office of the respondent-company is situated at GS Road, Hanumanbux Umadut, Shillong, Meghalaya, India-793001. The respondent-company was on or before about 15.04.2008 converted into a Public Limited Company and accordingly, a fresh certificate of Incorporation dated 15.04.2008 was issued by Registrar of Companies. As such, it is now a Public Limited Company and is known as M/s. JUD Cements Ltd.

4. The main objects of the respondent-company was formed and incorporated are contained in Clause III (A) (1) of the Main Objects Clause of the Memorandum of Association of the company. One of the relevant objects is reproduced below:--

(1) To carry on the business of manufactures, traders, stockists, importers, exporters and dealers in cement ordinary, white, coloured, cement pipes, Portland cement, cement lime, limestone, alumina, cements sheets, refactories, bricks and other construction and building materials, all kinds of byproducts of cement and limestone, calcium carbide, pozzolana, blast furnace, silica, precipitated lime and other products based on lime stone.

5. The facts of the petitioner's case leading to the filing of this application is briefly recapitulated. A contract was signed on 15.10.2006 between the petitioner and the respondent-company for supply of mechanical, electrical and instrumentation equipments, for providing of technical assistance, supervision of erection and commissioning of a TPD dry process cement plant at Wahiajer in the district of Jaintia Hills, Meghalaya. Initially, the contract price agreed by the parties was Rs. 54,78,00,000/- (Rupees fifty four crores seventy eight lakhs only) excluding taxes and duties. The said contract price was subsequently revised from time to time and ultimately, it was revised to Rs. 57,87,85,000/- (Rupees fifty seven crores eighty seven lakhs eight five thousand only) vide revision dated 31.10.2008. The respondent-company and the petitioner acted on this contract and the petitioner discharged all its liabilities as per the said contract dated 31.10.2008. Thereafter, the accounts were reconciled first on 10.09.2009 between the petitioner and the respondent-company, whereby a sum of Rs. 3,83,98,224/- (Rupees three crores eighty three lakhs, ninety eight thousand two hundred twenty four only) was found due and payable to the petitioner by the respondent-company. After signing of the said Reconciliation statement of accounts, the respondent-company issued three cheques of Rs. 50,00,000/- (Rupees fifty lakhs only) each in favour of the petitioner. It is stated that the said three cheques were issued by the respondent-company towards part payment of total legally enforceable debt and liability of Rs. 3,83,98,224/- (Rupees three crores eighty three lakhs, ninety eight thousand two hundred twenty four only), which the respondent-company admitted an acknowledged at the time of signing of Reconciliation statement. Against one of the said cheques of Rs. 50,00,000/- (Rupees fifty lakhs only), the petitioner received an amount of Rs. 25,00,000/- (Rupees twenty five lakhs only) on 01.10.2009 and Rs. 25,00,000/- (Rupees twenty five lakhs only) on 31.10.2009 from the respondent-company. However, the said two cheques of Rs. 50,00,000/- (Rupees fifty lakhs only) were dishonoured. Thus, the petitioner filed a case under Section 138 of the Negotiable Instruments Act, 1881 in respect of the said two cheques and the proceedings thereof are pending before the court.

6. The petitioner had approached the respondent-company as well as the Chairman and Managing Director from time to time for obtaining its due and legally enforceable liability of remaining amount payable by the respondent-company but under one pretext or other, the respondent-company had delayed the payment. Ultimately, the respondent-company during the year 2010-2011 made a partial repayment of Rs. 1,80,07,277/- (Rupees one crore eighty lakhs seven thousand two hundred seventy seven only) apart from Rs. Rs. 50,00,000/- (Rupees fifty lakhs only), out of the total legally payable debt and liability of Rs. 3,83,98,224/- (Rupees three crores eighty three lakhs ninety eight thousand two hundred twenty four only). On 13.04.2011, the parties again met to reconcile the amount and the revised reconciliation statement and signed on 13.04.2011 by both the parties and a sum of Rs. 1,54,11,576/- (Rupees one crore fifty four lakhs eleven thousand five hundred seventy six only) was found to be due and payable to the petitioner by the respondent-company. Thereafter, the respondent-company issued six post dated cheques totaling to Rs. 51,37,192/- (Rupees fifty one lakhs thirty seven thousand one hundred ninety two only) towards part discharged of the aforesaid due and payable debt to the petitioner. However, on presentation of all these cheques issued were returned unpaid. Thereafter, the proceeding under Section 138 of the Negotiable Instruments Act, 1881 was initiated and the same was pending. Time and again, the petitioner made telephone calls and sent reminders asking the respondent-company to make the payment of the said amount of Rs. 1,54,11,576/- (Rupees one crore fifty four lakhs eleven thousand five hundred seventy six only), but the respondent-company did not pay any heed to the same. Therefore, the respondent-company is liable and responsible to pay the said amount of Rs. 1,54,11,576/- (Rupees one crore fifty four lakhs eleven thousand five hundred seventy six only) to the petitioner.

7. The petitioner, through its General Manager-Legal and Finance, issued a notice dated 31.05.2012 as required under the provisions of Section 434 of the Companies Act, 1956 to the respondent-company demanding the payment of Rs. 1,54,11,576/- (Rupees one crore fifty four lakhs eleven thousand five hundred seventy six only) with a sum of Rs. 79,25,213.56/- (Rupees seventy nine lakhs twenty five thousand two hundred thirteen and fifty six paise only) as interest calculated at the rate of 12% per annum within three weeks as per Section 434 (1)(a) of the Companies Act, 1956. The said notice was sent by registered post with AD at the registered office of the respondent-company and the same was duly delivered at and received by the respondent-company. However, the respondent-company did not respond to the same. However, through bona fide mistake, the petitioner through its General Manager Legal and Finance issued the said notice in the form of Advocate notice. But the fact remains that the demand was made and the respondent-company duly received the said notice. The said notice dated 31.05.2012 (Annexure-4 to the petition) reads as follows:--

WALCHANDNAGAR INDUSTRIES LIMITED (AN ISO 9001 COMPANY)

Date:31-05-2012

M/s. JUD Cements Ltd.
(Earlier JUD Cements Pvt. Ltd.)
having its registered office at
Anil Plaza, 4th Floor (B-1),
Near ABC, Bhangagarh, G.S. Road,
Guwahati 781 005
Dear Sirs,

Under the instructions of my client M/s. Walchandnagar industries Limited having its Registered Office at 3 Walchand Terraces, Tardeo Road, Mumbai 400 034 and Chief place of business at Walchand House 167A, 2/8 + 2/9 Karve Road, Kothrud, Pune-411 038, I have to give you this notice under section 434 (1)(a) of the Companies Act, 1956 and address as under.

1. That you had entered in to a contract dated 15th October, 2006, with my client for purchase of equipments for a new dry processing Cement plant of 1000 TPD capacity, on terms, conditions and covenants as contained in the above referred contract for a total consideration of Rs. 54,78,00,000/- (Rupees Fifty Four Crores Seventy Eight Lakhs only) and further revised to Rs. 57,87,85,000/- (Rupees Fifty Seven Crores Eighty Seven Lakhs Eighty Five Thousand only).

2. That you and my clients acted on this contract and completed the same. There after the accounts were reconciled first on 10-09-2009 and then on 13-04-2011, and a sum of Rs. 1,54,11,576/- (Rupees One crore Fifty Four Lakhs Eleven Thousand Five Hundred Seventy Six only) was found due and payable to my clients. That you accepted this reconciliation in writing and promised to pay the dues in due course. Accordingly...

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