9911796707
TMI Blog1988 (11) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... he supply of iron and steel C.R. Coils. The same was supplied, vide bill No. 1806, dated August 7, 1984. On receipt of the goods, the respondent company issued a cheque No. 224994, dated August 7, 1984, for Rs. 1,20,000 drawn on Corporation Bank, Greater Kailash, New Delhi, towards part payment of the aforesaid bill. The cheque was presented but was returned with the remark "refer to drawer". The petitioner represented to the executive director that the cheque was not cleared. The executive director reassured the petitioner that the cheque would be cleared as and when presented and that he had advised the. respondent company to make suitable arrangements for clearance of the cheque. It was further pleaded that. Shri S.N. Malhotra, partner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been delivered by the petitioner. Photo copy has been placed on record as annexure R-1 to the written statement. On the original bill, which has been placed on record by the petitioner, there is an endorsement by Shri K.S. Rupal to the following effect : "Received for P.C.P. all material in order". No such endorsement exists on the duplicate bill supplied by the petitioner to the respondent company on the request of the latter and there appears to be a fabrication. A resolution was passed by the respondent company on June 24, 1983, that the account in the Corporation Bank will be operated over the joint signatures of any two of Mr. Balraj Singh, executive director, Mr. S.C. Goyal, Financial Controller and Mr. V.N. Rao, chief planni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y made by the petitioner, the bank had been honouring the cheques signed by said Shri S.S. Sandhu. If the cheque was not signed by the authorised person, the bank would have stated so and would not have returned it with the endorsement "effects not clear, present again". Mr. Bhagirath Dass, who appeared for the respondent, submitted that the affidavit filed in support of the petition is not in conformity with rule 21 of the Companies (Court) Rules, 1959. Rule 21 enjoins that every petition shall be verified by an affidavit and such affidavit shall be filed along with the petition and shall be in Form No. 3. Form No. 3 provides that the statement made in various paragraphs of the petition has either to be verified as true to knowledge or o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 3 of the Evidence Act and can be used as evidence only if, for sufficient reasons, the court passes an order under Order 19, rule 1 or 2 of the Code of Civil Procedure. Reference can be made to Smt. Sudha Devi v. M. P. Narayanan [1988] 3 SCC 366. I had thought of making a request to my lord the Chief Justice for referring the case to a larger Bench for reconsideration of the judgment rendered by the Division Bench in Mool Chand Wahi v. National Paints (Private) Ltd. [1986] 60 Comp. Cas.. 402 (E H). However, in view of my decision on the merits of the controversy, I do not think it proper to make such a request. This matter will be gone into in another appropriate case. In Amalgamated Commercial Traders ( P. ) Ltd. v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the debt is bona fide disputed by the company, against whom the winding up petition has been filed, the petitioner has to be relegated to a civil suit and a winding up petition will not be the appropriate remedy. The respondent-company has placed material before this court and it prima facie establishes that the debt is bona fide disputed. The duplicate copy of the bill, which is placed on record by the respondent company evidencing receipt of the goods in dispute, does not bear the signatures of Mr. K.S. Rupal who purports to have signed the original bill dated August 7, 1984. The original bill placed on record by the petitioner bears the signature of Mr. K.S. Rupal. The photo copy of the cheque issued to cover price of the goods, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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