1 cp330-10.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO.330 OF 2010 M/s.Shree Roadways Ltd .. Petitioner versus M/s.Kirloskar Pneumatics Co Ltd .. Respondent Mr.D.R.Juriya i/by R.R.Yadav for the petitioner. Dr.Birendra Saraf a/w Ms.I. Sen i/by Gagrats for the respondent. CORAM : S.C.DHARMADHIKARI, J. 11th November 2011. P.C.: 1} Heard. This is a petition for winding up. 2} The claim is on the basis that the petitioner is a transporter and has transported certain goods/consignments for the respondent, for which it was liable to pay the charges. 3} The charges having not been paid but according to the petitioner's advocate the liability is admitted, on account of deduction of tax at source. The certificate to that effect is a proof of liability and that 2 cp330-10.doc admitted sum not being paid, the presumption under section 434(1)(a) of the Companies Act, 1956 can be raised against the respondent. Therefore, a prima facie case for winding up the respondent-Company is made out. Hence, the petition be admitted. 4} On the other hand, the respondent has pointed out by filing an affidavit in reply, that there is a suppression of material and relevant facts. The suppression is to the extent that the petitioner-transporter transported the goods by a certain vehicle which was under the command of the driver. That driver during the course of the journey and mid-way, shifted the consignment from one trailer to another. Once the petitioner admits such unauthorised shifting resulting into damage to the consignment and the loss suffered by the consignee on account thereby, then, this is not a case where a petition for winding up can be entertained. There is a bonafide dispute inasmuch as the defence of the respondent is substantiated by the letters addressed by the petitioner admitting the incident of the shifting. For all these reasons and when the partial claim in the petition is barred by law of limitation, all the more, such a petition should not be entertained. 3 cp330-10.doc 5} With the assistance of the advocates appearing for both sides, I have perused the petition and affidavits placed on record. From a perusal of the same, it is apparent that the petitioner does not dispute that the goods/consignment was shifted. That was to be forwarded to a consignee at Asansol. The driver of the trailer shifted this consignment to another trailer without informing the respondent. Police and legal action has been taken against the driver and there is a statement in the letter dated 18th January 2008 that due to long route and bad road condition, the material got damaged. Once there is a damage to the material, but, the reasons therefor are being disputed by the petitioner while admitting the incident of shifting, this is not a case where a presumption can be raised that there is a failure and neglect on the part of the respondent to pay the dues. The inability to pay the dues is a presumption which can be raised against the respondent provided the respondent does not release the monies without any justifiable cause or any bonafide ground or defence. 6} In the instant case, merely because a certificate deducting tax has been forwarded by itself and without anything more, will not be proof of liability as stated by Mr.Juriya. In the teeth of the record and when the 4 cp330-10.doc respondent has raised a claim for damages against the petitioner on account of the defective and damaged goods received by the consignee, the petition for winding up is not the remedy of the petitioner. The objection of Mr.Saraf that there is suppression of material facts, therefore, cannot be brushed aside. Further from the details of the invoices atleast some of them are of the year 2005/2006/ 2007 and the petition is filed after a period of three years. For all these reasons, the petition fails and it is dismissed. All observations are made only for the purposes of disposal of this petition for winding up and shall not preclude the petitioner from filing appropriate proceedings and recovering such sums as are due and payable as per the law. (S.C.DHARMADHIKARI, J)