9911796707
TMI Blog1971 (8) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... as "the company ") various mill stores and equipment between October, 1968, and July, 1969, and submitted their bills. The respondents submitted their bills to the company which were accepted by the company and the company from time to time made diverse payments and a sum of rupees 98,583 44 remained due by the company to the respondent in respect of balance of price of goods said and delivered as aforesaid. As the company failed to pay the respondents the said dues, the respondents by a notice of their solicitor dated the 28th of November, 1970, served on the company under section 434 of the Companies Act, 1956. The company never replied to the said letter. Thereafter on the 18th May, 1971, the respondent presented the said Company Peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mily members. It was alleged that the respondent is really in the nature of a partnership and a family concern. The said Binode Kumar Saraf is also a partner of the said Shri Laxmi Trading Company. It was again alleged that after the said statutory notice was served by the respondent on the company the deponent rang up Binode Kumar Saraf and there was a discussion between them in the 3rd week of December, 1970. It is also alleged to have been agreed between them that no further notice need be taken of the said statutory notice served by the respondent on the company. It was further alleged that it was agreed by the said oral discussion with the deponent and Binode Kumar Saraf and one Umasankar Saraf, a partner of the said firm of Shri Laxmi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and admitted claim of the respondent, if possible. The directors of the company have deliberately avoided affirming any affidavit in respect of the alleged agreement for obvious reasons that the story of such an agreement is absolutely false. Mr. Kar submitted that the said Shri Laxmi Trading Company is a partnership firm and the respondent is a private limited company and they are separate legal entities. The said firm and the respondent had independent and separate transactions with the company. Mr. Kar also referred to the statement of the outstanding bills annexed to the winding-up petition showing clearly that the goods were supplied by the respondent to the company and bills were submitted in respect of such supplies pursuant to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt subsequently recorded in writing is something which a court of law cannot accept. It is also significant that none of the directors of the company has come forward to make an affidavit or support the chief accountant in this application. Not a scrap of paper has been produced to show that such a huge claim of the company against the said firm of Shri Laxmi Trading Company was sought to be adjusted against the comparatively small claim of the respondent from the company. It is also strange that the alleged oral agreement was entered into in November, 1968, but no effect was given to the alleged agreement by setting off the claim of the respondent against the claim of the company from the said Shri Laxmi Trading Company. In fact, the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to be raised by the company as to the debt due by the company to the petitioning-creditor is not at all a bona fide dispute. In the result, I make an order that if the company pays a sum of Rs. 98,583 44 to the respondent's solicitor by 15th November, 1971, towards the respondent's claim, then the Company Petition No. 201 of 1971 and all proceedings thereunder would be permanently stayed. In default of such payment by the company to the respondent's solicitor in terms of this order this application for stay will stand dismissed with costs and the interim stay will stand vacated. In that event the winding-up petition would be advertised once in The Statesman, once in the Ananda Bazar Patrika and once in the. Calcutta Gazet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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