9911796707
TMI Blog1997 (3) TMI 548X X X X Extracts X X X X X X X X Extracts X X X X ..... i K.C. Thakur is a manager and has been duly authorised by the company to file the petition. The petitioner-company has a re-rolling mill for M.S. rounds tor-steel, etc. The petitioner has been purchasing ingots from the respondent-company for manufacturing purposes. The petitioner used to place the orders with the respondents and used to send advance amount for the supply of the goods and had an open mutual current running" account with the respondent from April 29, 1986, onwards. From April 29, 1986, to October 21, 1986, various purchases were made by the petitioner. On October 30, 1986, the petitioner advanced a sum of Rs. 50,000 to the respondent-company and a credit note of Rs. 1,039 was given on November 24, 1986. In the letter of the respondent dated November 24, 1986, the petitioner was informed by the respondent that it had wrongly charged ingots in excess by Rs. 100 per tonne and adjusted the amount. On December 1, 1986, a sum of Rs. 84,776.03 was due to the petitioner from the respondent and writings were given on various dates pursuant to the notices sent by the petitioners that the amounts due to the petitioner would be paid particularly on May 25, 1987. Ultimately, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spondent-company in any manner whatsoever. It is further pointed out that there was no open mutual current running account as alleged by the petitioner. On the other hand, it was a simple relationship of seller and buyer of goods between the parties. The claim, if any, as alleged, is hopelessly barred by time. No notices were either served upon the respondent-company or even presented to any one authorised on its behalf by any one including the postal authorities. In these circumstances, it appears that the petitioner has been able to manage the postal endorsement of refusal. Had any such notice( s ) been delivered at the registered office of the company and/or presented by the postal authorities that would have been promptly replied to by the respondent. It is totally incorrect for the petitioner to say that the respondent-company has failed to pay and liquidate its liability. The correctness of the statement of account is specifically denied. It is a self-serving statement prepared by the petitioner." In rejoinder the petitioner-company reasserted the allegations made in the petition but in addition added that a sum of Rs. 1,73,791.03 was due to the petitioner on September 30, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he books of account of the respondent-company Rs. 84,776.03, was due to the petitioner-company on December 1, 1986, and March 31, 1988. It may be referred here that in the main petition itself there is no plea that the interest was agreed to be paid on the basis of usage or custom. There is also no plea that what would be the rate of interest in that particular behalf. Any way, the fact remains that the pleadings in the petition are silent as to how the amount from Rs. 84,776.03 due on December 1, 1986, and March 31, 1988, was raised to Rs. 1,73,791.03. No doubt, in the rejoinder, the petitioner-company has tried to explain this aspect of the matter by claiming interest at the rate of 18 per cent. per annum but again the rejoinder is silent as to what is the base for claiming such an interest especially when no agreement between the parties in this particular behalf has been pleaded or brought on record. On the basis of the aforesaid circumstances, the parties' submissions have to be appreciated. Learned counsel for the parties have tried to rely upon some decided precedents to find support in regard to their respective submissions. Various authorities have been cited on beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to establish its claim in the civil court and if the decree that may be obtained by it remains unsatisfied in whole or in part, the petitioner can seek the winding up of the company. It has further been observed that it is not the legislative intent that the company court should convert itself into an ordinary civil court and proceed to hold a trial at the instance of every petitioner claiming to be a creditor of the company and proceed to pass a decree and thereafter order the winding up of the company on the ground that it is unable to satisfy the decree. It has further been held that unless the debt alleged to be due is clear and free from doubt, it cannot reasonably be said that there is negligence, failure or inability to pay the debt and, therefore, the discretionary order of winding up, which order if made would result in sounding the death-knell of a company, should not be made. In Raghunath and Son Private Ltd. v. Pandam Tea Co. Ltd. [1978] 48 Comp Cas 577 (Cal) it has been held that in an application for winding up by a creditor of a company, though the balance-sheet of a company contained an entry "secured loans as per Schedule 'A' Rs. 9,34,545" including that du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rstly, that the amount claimed as interest had yet to be established as a debt ; secondly, even if it was a debt, it was bona fide disputed ; thirdly, the company was not insolvent and fourthly, the company had not mala fide refused to pay the amount claimed. Consequently, the winding up petition had to fail." In the present case also the alleged interest, for the first time, was claimed in the notice sent to the respondent-company under section 434 of the Companies Act, but, as referred to above, in the petition itself there was no mention regarding the interest what to speak of its rate being 18 per cent. per annum. On the other hand, learned counsel for the petitioner has tried to find support from the judgments in Ashoka Agencies and Business Forms Ltd., In re [1999] 95 Comp Cas 172 ; [1995] 4 Comp LJ 519 (Cal) ; Devendra Kumar Jain v. Polar Forgings and Tools Ltd. [1993] 1 Comp LJ 184 (Delhi) and Stephen Chemical Limited v. Innosearch Limited [1986] 60 Comp Cas 702 (P H). In the aforesaid citations, on the basis of the facts involved therein, it has been observed that the company judge could ask for the interest from the respondent-company. In Ashoka Age ..... X X X X Extracts X X X X X X X X Extracts X X X X
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