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TMI Blog1989 (7) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... fferent sizes. A sum of Rs. 36,000 was paid as advance by the respondent to the appellant. The case of the appellant is that between August 12, 1982, and November 21, 1982, it sent various consignments of the aforesaid material to the respondent. Delivery of these consignments was taken and the value of the goods which were supplied came to Rs. 2,14,091.20. After adjusting the advance of Rs. 36,000, a sum of Rs. 1,78,091.20 became due and payable. According to the appellant, the respondent is also liable to pay a further sum of Rs. 14,986.40 by way of sales tax. A statutory notice of demand was issued by the appellant, but no payment was made. Thereafter, a petition under section 433 of the Companies Act was filed for winding up the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate, the quality and the delay in the supply of the material leading to the cancellation of the contract. The learned single judge found that there was never any controversy raised by the respondent with regard to the rate which was to be charged. Similarly, he came to the conclusion that the respondent has never raised any objection with regard to the quality of the goods which were supplied. It was noted that the respondent has been taking delivery of the goods without raising any objection and in fact some of those goods were even exported from India by the respondent. The learned judge came to the conclusion that the dispute sought to be raised with regard to the quality did not appear to be bona fide or of any substance. Even with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ia , directing the respondent to deposit a sum of Rs. 25,000 within a period of four weeks, which could be withdrawn by the appellant on furnishing security. It is, however, important to note that a further direction which was issued was that if the respondent company made a default in making the deposit or furnishing security for Rs. 50,000 then the winding up petition would stand restored and admitted but would be tried without citation. From the judgment of the learned single judge, we do not find any reason as to why the petition should have been dismissed. The learned judge, came to the conclusion that not only was there no merit or substance in the contentions sought to be raised by the respondent but that even some of the documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, been unable to show that the contentions so raised by it had any basis. We are in complete agreement with the company judge that the defence raised by the respondent had no merit but we fail to understand as to why the petition should have been dismissed. In our opinion, prima facie, the only conclusion which could be arrived at was that the respondent was unable to pay its debt and that it was necessary to admit the petition. We, accordingly, allow the appeal and order that the winding up petition filed by the appellant is admitted. This leaves the question as to whether the petition should be advertised or not. The question as to whether the citation should issue will be determined by the learned company judge who will also decide th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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