HON’BLE SRI JUSTICE C.V. NAGARJUNA REDDY C.P.No.220 of 2012 Date : 28-7-2014 Between:
Pragnya Riverbridge Developers Ltd., Represented by its Company Secretary Mr. G. Srikanth ..
Petitioner And Vision Ventures Ltd., Represented by its Managing Director Mr. Brindavanam Lakshmi Prabhakar .. Respondent Counsel for petitioner : Ms. K. Srilatha for Sri S.V. Ramakrishna Counsel for respondent : Sri Y. Surya Narayana The Court made the following:
ORDER:
This Company Petition is filed for ordering winding up of the respondent for non-payment of the alleged debt due to the petitioner.
The petitioner claimed that it was originally incorporated as a Private Limited Company in the name of Vision Heights Pvt. Ltd. under the Companies Act, 1956 (for short "the Act") and registered on 10-11-2008; that subsequently the petitioner was converted into a Public Limited Company under a fresh certificate of incorporation on 25-3-2010 and that its name was changed to Pragnya Riverbridge Developers Ltd. That the respondent was originally incorporated as a Private Limited Company on 1-7-2004 under the Act in the name of Vision Ventures Pvt. Ltd. That the Managing Director of the respondent- company i.e., Mr. Brindavanam Lakshmi Prabhakar and his wife Mrs. Ratna Kumari Puppala, have originally incorporated the petitioner-company; that the said Mr. Brindavanam Lakshmi Prabhakar, has acted as the Managing Director of the petitioner-company till 15-2-
2012 and resigned as such and sold his and his wife’s equity shares and completely disassociated with the petitioner-company. That the petitioner entered into a Development Agreement-cum-Irrevocable General Power of Authority dated 19-6-2009 with 18 others who owned certain pieces of land admeasuring Ac.46-72½ cents of land at Velugubanda village, Chakradwarabandam Gram Panchayat, Rajanagaram Mandal, Rajahmundry; that the petitioner has entered into an EPC contract with the respondent-company on 20-10-2009 for construction of integrated residential township on the above mentioned lands; that in terms of the said EPC contract, the petitioner has to make payments directly as per the terms of the contract under running account and that any dispute arising in respect thereof has to be resolved amicably, failing which the same shall be referred to arbitration.
The petitioner alleged that the respondent, through its former Managing Director, has indulged in siphoning of huge amounts belonging to the petitioner; that vide letter dated 6-2-2012, the petitioner has informed the respondent that it has made excess payment of Rs.4,14,58,424/- and also another sum of Rs.3,89,42,858/-; and that the respondent vide letter dated 7-2-2012 has denied the said claim of the petitioner and admitted that the respondent is due in a sum of Rs.1,46,14,575/-. The petitioner alleged that the respondent has suppressed the amounts actually receivable by the petitioner and come out with false figures showing as if he is entitled to receive lesser amounts. The petitioner has given the break-up for Rs.4,13,79,823/- under four different heads. The petitioner has caused a statutory notice on the respondent to which it has given a reply.
In response to the notice issued by this Court, the respondent has filed its counter-affidavit wherein it has denied any liability and on the contrary it has claimed that the petitioner owes to the respondent a sum of Rs.80,39,40,270/- for recovery of which they have raised a dispute before the arbitrator.
Heard the learned counsel for the parties and perused the record.
A perusal of the correspondence shows that there are claims and counter-claims between the parties. While the petitioner alleged that the respondent has siphoned off certain monies belonging to it, the respondent has alleged that the petitioner owes huge amounts under the EPC contract under various running bills. Indeed, letter dated 7- 2-2012 issued by the respondent in reply to the petitioner’s e-mail dated 6-2-2012 reflects that while certain amounts appear to be due from the respondent to the petitioner, the respondent has offered that the same may be deducted from the running bills.
The learned counsel for the petitioner stated that the respondent cannot link up the amounts payable by it to the petitioner with the amounts payable by the petitioner under a different contract which is the subject matter of arbitration proceedings.
I am afraid, I cannot accept this submission. Even assuming that the respondent is liable to pay certain amounts as claimed by the petitioner, it has given its consent for adjusting the said amount from the running bills payable to it. In order to wind up a company, the debt must not only be an admitted one, but the debtor company shall be shown to be unable to pay such debt. In this case, as observed herein before, the respondent has categorically requested the petitioner to deduct the amounts payable by it from out of the amounts payable to the respondent by the petitioner under the running bills. Therefore, it cannot be said that the respondent is unable to pay the debt to the petitioner even if such debt is treated as the admitted debt. In respect of the amounts allegedly payable by it to the respondent, the petitioner pleaded that the same has to be adjudicated by the arbitrator while maintaining that the respondent shall be wound up for non-payment of the dues owed to it. In my opinion, the petitioner cannot be allowed to apply different yardsticks for the debts owed to each other. If eventually the arbitrator passes an award in favour of the respondent, by all means it is entitled to ask the petitioner to withhold the amounts which it is entitled to recover from the respondent and pay the balance amount under the award. In the above facts and circumstances of the case, I do not find any merit in the Company Petition and the same is accordingly dismissed.
As a sequel to the dismissal of the Company Petition, Company Application Nos.1247 and 1248 of 2012 filed for interim reliefs are disposed of as infructuous.
Justice C.V. Nagarjuna Reddy Date : 28-7-2014 AM