2005 (1) TMI 405 - HC - Companies Law

Summary

Issues Involved:
1. Agreement for supply of industrial gas cylinders and outstanding payments.
2. Statutory notice of demand and its receipt.
3. Winding up petition and affidavit-in-opposition by the company.
4. Examination of petitioner's case.
5. Examination of company's defense.
6. Disputed correspondence and statutory notice.
7. Admission of winding up petition and cross-claims.

Detailed Analysis:

1. Agreement for supply of industrial gas cylinders and outstanding payments:
The parties entered into an agreement for the supply of industrial gas cylinders. The petitioning creditor supplied cylinders to the company based on purchase orders. The company admitted the supplies and part payments, as shown in the statement of account annexed to the affidavit-in-opposition. The petitioner claimed an outstanding amount of Rs. 42,78,831, including sales tax of Rs. 62,640. The company contended it was entitled to a 15% discount amounting to Rs. 47,48,373, leading to a refund claim of Rs. 4,69,542 and additional damages of Rs. 10,50,525 for non-supply.

2. Statutory notice of demand and its receipt:
The statutory notice of demand was received by the company but not replied to. The company denied the receipt of the statutory notice, despite the petitioner annexing a xerox copy of the acknowledgment due card showing receipt by someone on behalf of the company.

3. Winding up petition and affidavit-in-opposition by the company:
The company contested the winding up petition by filing an affidavit-in-opposition, denying several reminders and the receipt of the statutory notice. The company claimed that the signature on the acknowledgment due card was not of any authorized representative.

4. Examination of petitioner's case:
The petitioner provided invoices and delivery challans, which were admitted documents. The petitioner also annexed several reminder letters, the receipt of which was disputed by the company. The statutory notice of demand was sent by registered post with an acknowledgment due card, which was received back, showing that someone on behalf of the company received it. The court found that the petitioner discharged their onus, warranting the admission of the winding up petition.

5. Examination of company's defense:
The company annexed two documents: a letter dated 30th May 2003 and a statement of transactions and payments. The company claimed an agreement for a 15% discount, which they could not avail due to non-supply, resulting in damages of Rs. 10,50,525. The company sought a refund of Rs. 4,69,542 on account of the 15% discount. The court found inconsistencies in the company's stand, noting that the company was unclear about its actual position, leading to the conclusion that the defense was not bona fide.

6. Disputed correspondence and statutory notice:
The court decided not to delve into the disputed correspondence, as it could invite an issue warranting a regular trial. Instead, the court focused on the principal issue. The company argued that the winding up petition was not maintainable due to the lack of statutory notice. The court held that the notice was duly served, as evidenced by the acknowledgment due card, and the statutory requirement was complied with.

7. Admission of winding up petition and cross-claims:
The court held that the petitioner's claim was not disputed, while the company failed to establish its cross-claim. The winding up petition was admitted for a sum of Rs. 4,27,831 on account of the balance price of goods sold and delivered, with interest at 6% per annum from 30th September 2002 until payment. The company was also obliged to pay sales tax amounting to Rs. 62,640. The petitioner was entitled to publish advertisements in Financial Express and Aajkaal, with the winding up petition returnable six weeks from the date of publication. The petitioner was instructed not to publish the advertisement for two weeks from the date of the judgment.

Conclusion:
The court admitted the winding up petition, finding the petitioner's claim valid and the company's defense inconsistent and not bona fide. The court ordered the company to pay the outstanding amount, interest, and sales tax, while allowing the petitioner to publish the winding up notice.