9911796707
TMI Blog1998 (3) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... chilled milk to its factory at 18 Km. Stone Ghaziabad, Hapur Road, Ghaziabad. The milk supplies in pursuance to the said demand were effected from September 1995 during the period 1995-96. The petitioner was raising bills for the supplies effected from time to time and as on 4-4-1996 the debit balance of Rs. 20,65,930 were confirmed by the respondent company in furtherance of which various demands were made by cheque. Some of them were dishonoured. Fresh cheques were issued in lieu thereof which were encashed even as late as on 29-1-1995. The last cheque which was for Rs. 95,000 was encashed. It is further averred that the accounts were again reconciled on 4-2-1997 and payment due to the extent of Rs. 2,01,373.70 was found due and payable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only dispute which has to be gone into at this stage is whether the dispute or the stand taken by the respondent company is bona fide and is apparently supported by record which would take the present case outside the jurisdiction exercisable by the company court while entertaining the petition for winding up. It has been specifically averred in the petition and the notice under section 434, served upon the respondent company that the debit balance which was confirmed between the parties through Bhupinder Rastogi accountant of the respondent was Rs. 20,69,930. It is further averred that various payments were made thereafter towards this admitted liability. Some of the cheques were returned unpaid and the respondent company had issued seve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notice and opted to give a very vague and indefinite reply. Reply to para 7 of the petition in the written statement filed on behalf of the respondent company reads as under : "That contents of para No. 7 are denied being incorrect. As mentioned in the preliminary objections, the petitioner had been getting the details of supply of milk only in good faith from the respondent on the plea that the account of short supply shall be settled towards the end of the year and in fact had a mala fide intention but the respondent had been giving and signing the statement of account in good faith in respect of total current supply only and the said statements have been used now against the respondent intentionally." 4. It is clear from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement. This is strange that in spite of this specific stand the copy of the alleged agreement has not seen the light of the day so far. The alleged agreement or terms and conditions thereof have neither been pleaded in the written statement nor any document has been annexed thereto which could throw some light in this regard. The agreement at least prima facie would be the best evidence. The party which has pleaded the agreement and alleges execution of such agreement ought to have produced the agreement in court. Failure on the part of the respondent company to produce any agreement or even a document analogous to an agreement would obviously result in drawing an adverse inference against the respondent company at least at this stage. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of Madhusudan Gordhandas Co. v. Madhu Woollen Industries P. Ltd. AIR 1971 SC 2600 : "The principles on which the court acts are first that the defence of the Company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima proof of the facts on which the defence depends." 6. A Division Bench of this Court in the case of Straw Board Mfg. Co. Ltd. v. Mahalakshmi Sugar Mills Co. Ltd. [1991] (71) Comp. Cas. 544, following the above principles also indicated that where the claim of the petitioner/guarantor is bona fide it would be an additional consideration for entertainment of such a petition. 7. In other words, a sham or a dispute whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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