9911796707
TMI Blog2000 (1) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... 8,600. The copies of the invoices and the copies of the weighment sheets were filed as Annexure-A, as proof of receipt of material. In or about October 1998, the respondent had indicated that in kraft paper reels, there was excess moisture. The petitioner had stated that in the supplies to be made in future, care would be taken and that the petitioner would supply natural shades of paper. The petitioner had also requested the respondent to release the balance payment immediately. The respondent had issued eighteen (18) cheques for an aggregated value of Rs. 8,15,670, which are detailed in para 8 of the company petition. The cheques from 9-10-1998 to 16-12-1998 for various amounts were drawn on Bank of Baroda, Secunderabad Branch. The petitioner presented the cheques to its bankers when they fell due, but the cheques were dishonoured by the respondent s bank on the ground that the respondent had directed the bank to stop payment. The statement showing the various cheques, the dates they were drawn, the amount they covered, the details of presentation and their return were also filed as Annexure-B. The petitioner caused service of a legal notice on the respondent on 3-11-1998 under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... large amounts of money to various creditors. 3. In answer to the show-cause notice, the respondent-company filed its counter admitting that the petitioner is a manufacturer of paper and denied the placement of orders for supply of paper from the petitioner by the respondent. The respondent had stated that the petitioner themselves approached the respondent representing that they are manufacturers of quality paper, which the respondent use for manufacturing corrugated boxes and as such, the respondent has placed orders commencing from the month of March, 1998. As per the terms, the petitioner used to supply the papers by receiving the post-dated cheques approximately for more than 90 days from the date of supply. The respondent admitted about the supplies made by the petitioner under various consignments from 3-7-1998 to 24-9-1998 and the total value of the supplies made by the petitioner is Rs. 15,68,600 and also admitted about the receipt of the consignments. The respondent also admitted that they had informed the petitioner about the excess moisture affecting the quality of the corrugated boxes manufactured by the respondent, orally, in the month of August, 1998, regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ispute at the earliest, but the petitioner gave a vague reply dated 23-10-1998 without making any assurances to settle the matter. 4. Asian Paints had rejected the consignment of the respondent on 29-9-1998 and immediately the respondent vide their letter, dated 3-10-1998 intimated the petitioner about the defective quality of paper supplied, for which the petitioner has orally promised to settle the matter amicably. After giving vague reply on 23-10-1998, the petitioner started presenting the post-dated cheques and got issued the notice under section 138. The respondent also denied the allegation that the respondent is not in a position to meet its debt obligation as and when they arise and has become commercially insolvent and has lost its substratum and owes various sums to its creditors. The respondent further averred that they have filed a civil suit for a direction to the petitioner to return the post-dated cheques in O.S. No. 391 of 1998 on the file of learned III-Senior Civil Judge, City Civil Court, Secunderabad. The petitioner was also served with summons and thereafter, this company petition is filed as a counter blast. 5. The learned counsel for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 5,18,700, and it cannot be said that the respondent is unable to pay its debts and has become commercially insolvent and lost is substratum. On all the dates, when the cheques were due, the respondent is having sufficient amounts to meet the liability and the statement of account also was enclosed to the reply to establish that the respondent is having sufficient funds to their credit and, therefore, it is not a case for admission and for ordering the winding up of the respondent-company. Apart from the same, the respondent filed a suit before the learned III-Senior Civil Judge, City Civil Court, Secunderabad, being O.S. No. 391 of 1998, seeking a direction to the petitioner for return of post-dated cheques. Having appeared in the said suit, the petitioner filed the present petition as a counter blast and the same is liable to be dismissed. 8. In support of his case, he relied upon the judgment of the Supreme Court in Amalgamated Commercial Traders (P.) Ltd. v. A.C.K. Krishnas-wami [1965] 35 Comp. Cas. 456 . In view of the rival contentions, the question that falls for consideration is whether the petitioner can seek the winding up of the respondent-company under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises . The respondent had not made any arrangement for inspection of the quality of goods before they left the company of the appellant, but received the goods without objection and the goods were consumed and sold without any demur; and part payments were also made. 10. But in the present case, even before the demand started, the respondent made their claim and pointed out the defects and requested the petitioner to settle the matter and, in fact, the petitioner in their letter dated 23-10-1998 requested only to release the balance payment. What is the balance amount is also not mentioned, nor is it mentioned to release the entire payment due under the invoices. In the absence of the same, it cannot be said that the respondent agreed to release the payment due by them to the petitioner at any point of time. In view of the same, the facts in the present case are different with the facts in the case of Chem-Crown India Ltd. ( supra ). Hence the principles laid down in that case are not applicable to the facts of this case. 11. Another significant factor in the present case is that the respondent not only requested the petitioner not to present the post-dated cheques u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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