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TMI Blog1998 (5) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... g a sum of Rs. 23,20,945 being the value of the goods returned on various dates, a sum of Rs. 20,05,150 was due to the petitioner from the respondent in that transaction. Subsequently, the respondent paid a sum of Rs. 9,50,000 on various dates towards part payment of the total outstandings. An amount of Rs. 10,55,150 is due and payable by the respondent to the petitioner for the goods supplied. The respondent is also liable to pay interest at 18 per cent per annum as per the trade usage and custom since it is a commercial transaction. Therefore, the balance amount inclusive of interest due from the respondent to the petitioner as on 11-12-1995 in the above transaction is Rs. 15,76,040.60. The respondent has not paid the amount in spite of demands and the registered notice caused to be sent on behalf of the petitioner. In that registered notice it was clearly stated that in case the respondent fails to pay the amount within 21 days the petitioner will initiate winding up proceedings as provided under section 433. 4. The respondent has caused to send a reply denying the claim made by the petitioner and disputing the liability. The respondent had admitted their liability in the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sarees purchased from the petitioner drawn on Federal Bank and since the Federal Bank stopped credit facility to the company the respondent had requested the petitioner not to present the cheques drawn on Federal Bank for encashment. In spite of that request and payment of the amount by demand draft the petitioner presented the cheques for collection, got dishonoured and filed a complaint in C.C. No. 398 of 1995 against the respondent. The respondent approached the Madras High Court in Crl. R.C. No. 37 of 1996 against that matter and the Madras High Court remitted that matter to the Judicial Magistrate No. II, Coimbatore to record the memo for withdrawal of the complaint filed by the petitioner. The business of the respondent-company is running smoothly and the respondent is in a sound financial position and commercially solvent and is able to meet its current demands as and when fall due. The petitioner had already filed O.S. No. 1621 of 1995 before the Sub-Court, Coimbatore with regard to the same subject-matter. Since there is a bona fide dispute with regard to the claim made by the petitioner on substantial grounds which requires investigation in-depth, civil suit is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsaction between the petitioner and the respondent. In para 8 of the counter-affidavit filed by the respondent the transaction is admitted and it is contended that a major portion of the goods supplied were damaged and though the petitioner took back a portion of the damaged goods, the balance is lying with the respondent as it could not be disposed of at a lesser rate as requested by the petitioner and the petitioner did not take back that portion of the damaged goods. 11. The petitioner has contended that out of the total value of the goods worth Rs. 45,51,830 sent by the petitioner, deducting Rs. 23,20,945 being value of the goods returned on various dates the balance amount of Rs. 20,05,150 was due from the respondent and out of that amount the respondent paid Rs. 9,50,000 on various dates. Thus, a balance amount of Rs. 15,76,040.60 being the principal amount of Rs. 10,55,150 and interest thereon at 18 per cent per annum as on 11-12-1995 is due from the respondent to the petitioner. Therefore, it is clear from the contentions put forward by both sides that the petitioner has only claimed the value of the goods after deducting the value of the goods already returned by the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner or the dispute regarding any damaged goods supplied, between the petitioner and the respondent in that letter. It is also pertinent to note that even though the contention regarding damaged goods is with regard to the consignment sent as per invoke dated 1-2-1994 and 25-5-1994, the objec-tion with regard to the damaged goods is raised very belatedly only on 15-1-1996 as evidenced by Ext. R4. Annexure H filed by the petitioner along with the reply affidavit is the copy of the letter dated 26-6-1995 sent by the respondent to the petitioner requesting the petitioner not to present the cheques for encashment since they have changed their bankers and promising to send demand draft for the cheques within a fortnight Annexure I is the copy of the letter dated 5-8-1995 sent by the respondent to the petitioner enclosing a demand draft for Rs. 50,000 and requesting to return the cheque for the demand draft sent and promising to send demand draft for the other cheques within a fortnight. Annexure-J is the copy of the letter dated 9-8-1995 sent by the petitioner to the respondent is reply to Annexure-I acknowledging receipt of D.D. for Rs. 50,000 and intimating that they will not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raised is not bona fide or vague winding up order can be passed. 18. The next question to be considered is whether the petitioner is entitled to seek an order of winding up of the respondent-company in respect of the very same claim for the enforcement of which a civil suit is already filed by the petitioner and pending before the Sub-Court, Coimbatore. 19. In the decision in Central Bank of India v. Sukhani Mining Engg. Industries (P.) Ltd. [1977] 47 Comp. Cas. 1 a single Judge of the Patna High Court has held that winding up proceedings is not merely for the benefit of the petitioner but for all shareholders, creditors or contributories of the company and, therefore, winding up proceedings could not be stayed or dismissed merely because the creditor has filed a suit against the compa- ny. 20. In the decision in State Bank of India v. Hegde Golay Ltd. [1987] 62 Comp. Cas. 23 9 (Kar.) it was held that the company court can proceed with the winding up proceedings once it has come to the conclusion that it has not been a case of bona fide and tenable defence made out. 21. In the decision in V.K. Jain v. Richa Laboratories (P.) Ltd. [1993] 78 Comp. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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