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In The Matter Of Winding Up Of M/S Charam Housing Pvt. Ltd - COMPANY PETITION No. 15 of 2003  RD-AH 26 (1 January 2006)
Court No. 9
COMPANY PETITION NO. 15 OF 2003
M/s Tata Finance Ltd. Having its
Registered Office at Ahura Centre
82, Mahakali Caves Road, Andheri East
In the matter of M/s Charm Housing Private Ltd.
14/145, M.G. Road, Kanpur-208001
Hon'ble Sunil Ambwani,
Heard Shri C.K. Parekh, learned counsel for petitioner-company. Shri Nitin Sharma, learned counsel for the respondent-company is not present.
This creditor's winding up petition has been filed by M/s Tata Finance Ltd with its registered at Ahura Centre 82, Mahakali Caves Road, Andheri East, Mumbai with the allegations that respondent-company financed and entered into a hire purchase agreement for Tata Hitachi Equipment - Ex 60 Hydraulic Excavator with fittings, tools and accessories, with the respondent company. M/s Shivgarh Resorts Ltd. through its Director Rakesh Pratap Singh stood as a guarantor to the hire purchase agreement No. CEQ 348116 dated 31.3.1997 with a total contract value of Rs. 1, 845, 751/-. After taking possession of the equipment the respondent company abused the terms of the agreement and failed to maintain financial discipline. They paid only 25 monthly installment and part payment of 26th installment dated 8.12.1999, and thereafter failed to make the payments. A notice dated 4.6.2001 was sent calling upon respondent- company to pay Rs. 2, 26, 841/- as on 4.6.2001. The total amount on account of the first two counts as well as compensation and damages was quantified as Rs. 20, 71, 576/- of which registered notice was sent to the respondent company at its registered office. The legal notice dated 10.8.2002 with original registering postal receipt and original acknowledgment on post cards, ( Annexure-9) was served to which no reply was given by the respondent company.
In the counter affidavit of M. Rahman of the respondent-company, the execution of Hire Purchase Agreement is admitted. It is stated in para 14 that 27 post dated cheques for Rs. 64, 540/- each was given by the respondent company for 27 monthly installments to secure the payment of Rs. 3, 70, 490/- towards the cost of the equipment. It is further stated that the petitioner should reduce the rate of interest to 11.5% because the equipment is not a motor vehicle. The defence of the respondent-company given in para 14, 16 and 17 are given as below;
"14. That as per t he aforesaid proposal of the petitioner, the respondent agreed to pay the rest of the cost of the equipment in 27 installments by way of post dated cheques. In addition to the aforesaid payment of Rs. 1, 00, 000/- by cheque No. 6749 dated 11.4.1997 and payment of Rs. 64, 540/- by cheque No. 6791 dated 11.06.1997, the respondent paid Rs. 3, 70, 490/- vide cheque no. 006852 dated 08.10.1997 drawn on Bank of Baroda, Chunniganj, Kanpur. Further, the petitioner issued 27 cheques of Rs. 64, 539/- each (cheque No. 006853 to cheque No. 006879 drawn on Bank of Baroda, Chunniganj, Kanpur). The first cheque out of these 27 cheques was dated 08.10.1997 and thereafter, 26 post dated monthly cheques were issued by the respondent in favour of the petitioner and the last cheque was to be encashed on 10.12.1999.
16. That on 08.10.1999, after the respondent had issued 27 cheques as installments towards entire payment of the cost, the petitioner obtained signatures on a printed agreement from the office of the respondent situated at Kanpur. However, the petitioner did not fill in the entries of the said agreement and assured the respondent that the petitioner would send the copy of the complete agreement to the respondent within a week after getting it signed and completed by the petitioner. However, inspite of several requests of the respondent for the copy of the aforesaid agreement, the petitioner did not provide copy of the agreement. Further, the petitioner also did not send the proper statement of account regarding the installments paid by the respondent.
17. That the respondent has paid to the petitioner the entire price of the excavator. Further, the respondent has paid Rs. 86, 152/- extra to the petitioner, which would clearly follow from the table submitted hereunder:
The total advance payment made by the respondent to the petitioner by cheques mentioned above:
Rs. 5, 35, 030/- (Rs. 64, 540/-, Rs. 1, 00, 000/- & Rs. 3, 70, 490/-).
The instaments were as follows;
Instalment @ 11.5%
Total cost of equipment Rs. 18, 50, 940/-
Less: Advance Rs. 5, 35, 030/-
Total Rs. 13, 15, 910/-
Interest @ 11.5% Interest for 2.25 years
Rs. 3, 40, 491/-
Total payable: Rs. 16, 56,401/-
(Payable in monthly installment in 27 months).
Divided by post dated cheques of Rs. 64, 539/- the number of 25.66 installments were to be paid.
The respondent paid by way of 27 cheques mentioned above:
(Rs. 64,539/- x 27 instalments) = Rs. 17, 42, 553/-)
Thus, excess amount paid by the respondent to the petitioner is Rs. 86,152/- (Rs. 17, 42, 553/- minus Rs. 16, 56,401/- )"
The record shows that out of 27 installments, 25 instalments were paid within time and part payment was made in respect of 26 instalments. The respondent company is now claiming that it has paid access amount to the petitioner.
A perusal of the pleadings show that there is a bonafide dispute between the parties with regard to accounting which can be resolved by way of proceedings before an arbitrator to which parties had agreed in their agreement.
A creditor's winding up petition is not a remedy for settling bonafide dispute between the parties. It is also admitted that the respondent company has filed a Civil Suit for accounting, which can be referred to the arbitration in accordance with the hire purchase agreement between the parties.
The winding up petition is accordingly dismissed with liberty to the parties, to pursue their remedies in accordance with the law..
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