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TMI Blog1993 (10) TMI 291X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner supplied to the respondent company goods, vide three different invoices dated May 14, 1988, August 16, 1988, and September 9, 1988, respectively. After completion of the transaction, the petitioner requested the respondent company to furnish Form H which was required to be submitted with the sales tax returns. The respondent company, somewhere in the middle of January, 1991, intimated to the petitioner that Form H could not be furnished as its registration certificate was pending for amendment and change of the respondent's name, change of address, addition in business line and submission of fresh surety, hence it was not possible to get any form from the department but assured that Form H would be furnished within a month. On receipt of this letter, the petitioner intimated to the respondent that the last date for submission of Form H was January 22, 1991, and in the event, the respondent company failed to hand over Form H to the petitioner before the said date, then the respondent would have to pay sales tax on the goods purchased from the petitioner. On receipt of this letter, the respondent company, vide letter dated January 24, 1991, intimated to the petitioner that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been prosecuted by the sales tax department for this illegal act. It was in this background that the petitioner was informed to accept Form C. Had the petitioner accepted Form C, it would not have paid that much amount of sales tax. For the fault of the petitioner, the respondent cannot be made to suffer. I have heard learned counsel for the parties and perused the documents placed on record. In a winding up petition, the principles on which the court acts are, firstly, that the defence of the respondent company is raised in good faith; secondly, the defence is likely to succeed on point of law; and, thirdly, the company adduces prima facie proof of the fact on which the defence depends. Admittedly, the provisions of the Companies Act cannot be availed of for obtaining an adjudication of the right to obtain payment, when it is contested and the finding involves such a detailed and lengthy investigation as is necessary for a decision in a suit. Nor is a winding up petition a legitimate means to enforce payment of a debt which is bona fide disputed by the respondent company. When the defence is that the debt is disputed, all that the court first has to see is whether the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to be kept in mind. Those are: that the respondent company placed the order on the petitioner, vide the purchase order dated May 3, 1988. In this purchase order, against the column ST/CST, it was mentioned "Nil-Form H". Pursuant to this order, the petitioner supplied the goods against three invoices. In invoices dated May 14, 1988, June 18, 1988, etc., the ST/CST had been shown "Nil", meaning thereby that the goods were for export purposes and the petitioner was to receive only Form H from the respondent. This condition indicated by the respondent was accepted by the petitioner and the goods were accordingly supplied as has been reflected in the invoices. The petitioner in its sales tax return reflected this fact and final assessment order was passed on January 25, 1991. From a perusal of the documents placed on record, the picture which emerges clearly shows that the sales tax return was filed by the petitioner in time. This fact was communicated to the respondent company on the telephone as well as by the registered letter dated January 11, 1991, when the petitioner informed the respondent to furnish Form H. The respondent, vide its letter dated January 15, 1991, undertook to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n May 11, 1993, for the first time in its reply that the respondent set up the case of inadvertent mistake in the purchase order regarding "Form H". The contention of the respondent that the company immediately brought to the notice of the petitioner about the mistake is belied from the documents placed on record. These documents clearly show that from 1988 till 1993 when the company filed a reply to the show-cause notice, it never brought to the notice of the petitioner that the goods were used in the domestic market or that those were not meant for export. Even in reply to the petitioner's statutory notice the factum of mistake or inadvertent mentioning of Form H in the purchase order was not pointed out. Mr. Chaudhary, counsel for the respondent, was repeatedly asked at the Bar to produce any letter in the court showing that this mistake was brought to the notice of the petitioner during the currency of the contract or immediately thereafter. But he could not show or produce any document in this regard. On the contrary he relied on the letter issued by the company dated January 24, 1991. The reading of this letter does not even remotely suggest that the respondent company indica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a prima facie case. The plea of defence of the respondent company that there was an amendment to the purchase order has no relevance. This was with regard to subsequent orders placed. The subsequent purchase orders by the respondent on the petitioner would not amount to amendment in the purchase order dated May 3, 1988. The subsequent transaction and the contract signed therein cannot have a retrospective effect. I also find no force in the submission of counsel for the respondent that the dispute regarding which Form was to be supplied is a bona fide dispute. Admittedly, the purchase order dated May 3, 1988, indicated that Form H was to be supplied by the respondent company. In the absence of any evidence to the contrary, it will not amount to a bona fide dispute. The last date for filing the sales tax return was January 22, 1991. The assessment order was passed on January 25, 1991, whereas the offer to give Form C was made on January 24, 1991, and that too without any explanation as to why the petitioner should accept Form C instead of Form H. This court, at this stage, is only concerned as to whether, prima facie, a defence has been made out or not. This court is not en ..... X X X X Extracts X X X X X X X X Extracts X X X X
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