9911796707
TMI Blog1991 (5) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1988 are : The petitioner is engaged in the business of supplying all kinds of rods, angles, flats, etc. The registered office of the respondent-company is situate at 182, A.G.C.R. Enclave, I.P. Extension II, New Delhi. The petitioner entered into an agreement and understanding for supply of iron and steel material to the respondent company. The stipulations were that the payment would be made by the respondent company within 90 days of the receipt of the bills raised by the petitioner and that interest at 18 per cent. shall be charged on the amount of the bills which remain unpaid. The bills will be paid by account payee cheques only. In pursuance of the said undertaking, the petitioner supplied to the respondent-company various cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he rate of 18 per cent, per annum. The respondent-company has all along been admitting the liability and there is no bona fide dispute regarding the indebtedness of the company and that, in spite of the reminders including the statutory notice, the company has neglected and failed to pay the said sum and it is just and equitable to pass an order for the winding up of the company. The facts pleaded in C.P. No. 139 of 1988 are almost similar. The only difference is that the principal amount alleged is Rs. 1,54,894.40 besides interest of Rs. 53,281.36 as on September 15, 1988, at the rate of 18 per cent, per annum thus, making a total of Rs. 2,08,175.76. The particulars of the cheques alleged to have been issued by the respondent-company i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st 24, 1988, though in fact it is August 23, 1988. It may also be stated that the petitioners have not placed on record the statements of account which are alleged to have been acknowledged by the respondent-company as per the averments made in both the petitions. The petitioners also did not place on record along with the petitions any proof in support of the averments that it served statutory notices for winding-up on the respondent-company. In answer to show cause, the respondent-company has, inter alia , pleaded that : (1) no notice was received by the respondent company and no proof has been enclosed of service of notice and as such the presumption of deemed insolvency of the company under section 434(1)( a ) cannot be raised ; (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served on the respondent company. Learned counsel, however, contended that the respondent company was avoiding service of the notices. Assuming the respondent company was avoiding to take delivery of the registered envelopes there were other methods open to the petitioners to serve the company. There is nothing on record that any other mode was adopted. In any case, the averments in the petitions, that statutory notices were served on the respondent company are incorrect. Furthermore, the requirement of section 434(1)( a ) is that the notice is to be delivered at the registered office of the company. During the course of arguments in C.P. No. 138 of 1988 the petitioner placed on record a postal envelope said to have been sent by the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or can seek winding up of a company under section 433( e ) read with section 434(1)( c ) on the ground that the company is unable to pay its debts. The petitioners have not specifically pleaded that the company is unable to pay its debts. The petitioners have not stated as to what are the contingent and prospective liabilities of the company. Assuming that the petitioners have pleaded sufficient facts to show that the company is unable to pay its debts, I will now examine the documents placed on record by the petitioners and in the light of the said documents consider whether the disputes raised by the respondent company are bona fide or not. As noticed above, the petitioners have not placed on record the statements of account or acknowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been raised in good faith and that being so, the petitioner cannot invoke the winding up jurisdiction of this court. The plea of the respondent cannot be held to be mala fide simply on the basis of dates on Form ST-15. The respondent company has denied that it issued the said ST-15 Forms. The said ST-15 Forms were issued by the Sales Tax Department on October 4, 1986, although the date of the signatures by the respondent company is mentioned as June 2, 1987. The said ST-15 Forms have also to be seen in the light of the facts and the circumstances noticed above. Further, though the respondent company has pleaded that it never received the goods and also that the price mentioned in the bills is three times the prevalent market price the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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