1 IN THE H IGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION COMPANY PETITION NO. 896 OF 2009 Hemant Arvind Bhavsar. ... Petitioner Vs M/s.D.H. Secheron Electrodes Pvt. Ltd. ... Respondent Mr. Birendra B. Saraf with Neeta Solanki i/b Kiran Jain & Co. for the Petitioner. Mr. D.D. Madon, senior counsel, Mr. J.P. Sen, Mr. Pradeep Bakhru, Mer. D.H. Kakalia, Ms. Bhavna Singh i/b M/s.Mulla & Mulla and Cragie Blunt & Caroe for the Respondent. CORAM : S.J. VAZIFDAR, J. DATED : 7TH JUNE, 2010. P.C. : 1. This is a Petition for winding up on the ground that the company is unable to pay its debts. 2. The claim arises on the basis of the Consent Terms dated 16th April, 2009, filed between the parties in Company Petition No.108 of 2 2009. 3. The Petitioner must be relegated to alternate proceedings to enforce the claim based on the Consent Terms. It is not possible to do so in a winding up Petition. Clauses 1 and 4 of the Consent Terms read as under :- “1. The Respondent Company agrees to pay to the Petitioner total amount of Rs.39,84,691 (Rupees Thirty Nine Lakhs Eighty Four Thousand Six Hundred and Ninety One Only) in full and final settlement of the Petitioner’s entire claim in the following manner :- (a) Rs.10,00,000/- (Rupees Ten Lakhs) on filing Consent Terms and Order being passed in terms thereof and the Petitioner furnishing to the Advocates for the Respondents original receipts for the royalty amount paid of Rs,.5,12,550/- mentioning the name of the Respondent Company as Beneficiary. (b) Subject to the cap/ceiling of Rs.12,00,000/- (Rupees Twelve Lakhs), the Respondent Company will make direct payment to the concerned Revenue Department by Pay Order of the amount within 15 days from the date of the intimation to the Respondent Company by the Petitioner, being the balance amount of royalty on the Petitioner handing over to the Respondent Company challans for the royalty calculation made by the Revenue Department; alongwith the balance amount from the amount of Rs. 12,00,000/- will be paid by the Respondent 3 Company to the Petitioner. (c) On the revenue Department issuing the final no due certificate and the same being handed over by the Petitioner to the Respondent Company, the last balance amount of Rs.17,84,691 (Rupees Seventeen Lakhs Eighty Four Thousand Six Hundred and Ninety One) will be paid by the Respondent Company to the Petitioner on the completion of the above formalities. (d) Subject to the Petitioner having carried out his part of the obligations herein, in the event of the Respondent not making payment of the balance payable in terms of clause 1 (c) within 15 days from the production of the no-dues Certificate from the Revenue Department, the Petitioner will be entitled to interest on the said amount of Rs. 17,84,691 at the rate of 15% p.a. .................. 4. The Petitioner shall hand over to the Respondent Company the amended Bills in respect of the work done to reflect the correct quantities supplied as also original receipts for the Royalty amount of Rs.5,12,550/- within three days from today against which the Respondents Attorney’s shall hand over a cheque of Rs.,10,00,000/- in terms of clause No.1(a) hereinabove.” 4. Clause 1(a) must be read with clause 4. The amended bills were not furnished. The Petitioner contends that there was no error in the bills and, therefore, the question of furnishing amended bills did not arise. The company, on the other hand, contends that the fact that the Petitioner had agreed to supply amended bills itself indicates that 4 there were errors in the original bills. Whether the bills were proper or not cannot be decided in a winding up Petition. 5. Admittedly, the Petitioner has not furnished a final no due certificate as required by clause 1(c). Mr. B.B. Saraf submitted that there was an adjudication order which ought to be construed as a final no due certificate. He submitted that the revenue department does not have any such procedure of issuing a final no due certificate. There is nothing on record to substantiate this contention. Nor there is anything on record which suggests that the Petitioner applied for such a certificate but that the same was rejected on this ground. Prima facie, it is not possible to compel the company to pay the amounts in the absence of such a certificate. 6. As far as clause 1(b) is concerned, even the adjudication certificate relied upon by the Petitioner is in the sum of Rs.14,85,000/- together with a penalty of Rs.7,00,000/-. Thus, subject to any revision of the order, there is no question of the company paying any amount under clause 1(b) to the Petitioner. Further, the fact that an amount in excess of Rs.12,00,000/- was paid would entitle the Petitioner to raise 5 a claim for the excess amount. 7. In the circumstances, the Petition is dismissed. Needless to add that the observations are only for the purpose of this Petition and will not bind any court that may try the Petitioner’s claim on merits.