9911796707
TMI Blog1990 (4) TMI 230X X X X Extracts X X X X X X X X Extracts X X X X ..... business in manufacture of soya products, refined oils and de-oiled cakes at their plant at Dewas. The opponent-company had been supplying to the petitioner-firm soyabean extractions, rape extractions, etc., and, as alleged, the petitioner's sister concern, M/s. Rameshkumar Devkinandan, had been supplying rice bran to the opponent-company. According to the petitioner, in the course of the business of supplying of rice bran, the documents including railway receipts were to be retired through the bank by the opponent. The opponent-company was not able to retire the documents on account of its financial difficulties. Thereafter, an understanding was reached that the documents would be given without payments through bank against which the oppon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said bill. As such, the petitioner was entitled to the refund of the said amount from the opponent-company. As such, a total sum of Rs. 2,76,555.00 is due and payable by the opponent-company to the petitioner-firm, the company having failed and neglected to pay the said amount despite repeated demands. Therefore, the petitioner served a notice dated November 20, 1987, under section 434 of the Companies Act, 1956, on the opponent requiring to pay the aforesaid sum within 21 days from the date of receipt of the notice. But, despite the receipt of notice on November 25, 1987, the opponent-company has not complied with the said notice and has failed and neglected to pay the said amount within the said period. Therefore, the opponent-company b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition has been filed with oblique motives to harass the company on false premises. Rice bran was never supplied by the petitioner-firm and, therefore, there could have been no occasion for non-retirement of any consignment of the petitioner by the respondent-company. As regards settlement of accounts it has been averred that the respondent-company is neither concerned with the accounts settled between the petitioner-firm and M/s. Rameshkumar Devkinandan nor was it obliged to make any payment either to the petitioner or to the said concern on the basis of the said accounts. A copy of that statement was got inwarded mischievously by the petitioner in the office of the respondent-company. An acknowledgment has been given by the receiving ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accompanying invoice bears his signature. The company does not know whether actual payment has been made to Shri Kaushik because no documentary proof has been furnished in that behalf, and it was in any case a dealing between Shri Kaushik and the petitioner-firm. It has, therefore, been prayed that the petition be dismissed. By way of a rejoinder, the petitioner has stated that M/s. Rameshkumar Devkinandan is a proprietory concern of Shri Thanwardas who is the father of the partners of the petitioner-firm. Learned counsel for the petitioner, Shri N.C. Behl, in support of his petition, argues that the counter claim has been raised by the respondent-company after the filing of the petition and notice having been issued to the company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to claim the amount on behalf of a different firm only claiming the other firm as a sister concern of the petitioner-firm. I find no force in the argument that the dealings with the other firm, M/s. Rameshkumar Devkinandan, be treated as dealings with the petitioner-firm. The other claim of the petitioner is in para 5 of the petition, wherein compensation for loss/damages has been claimed for non-supply of the materials to the petitioner. This claim has been controverted by the non-petitioner and claim of damages not being an amount due as a result of settlement cannot be the subject-matter of a petition under the Companies Act, 1956. When, on the one hand, the petitioner claims damages on account of breach of contract for failure on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to him by the company, and the petition has to be read in the context of the company's affidavit in opposition. Therefore, if the notice remained unreplied, then the petition has to be read with the statutory notice and, in that case, if the notice discloses the ground, then the petition cannot be dismissed on the ground that it is lacking in necessary averment of essential particulars. In the instant case, the dispute before me is not about the lack of necessary details. The basis of the claim is specific and the stand of the company is also in unequivocal terms. In view of the aforesaid discussion, I am of the view that, in a winding-up petition, the creditor has to establish that the debt owed by the company is clear, valid in law, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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