9911796707
TMI Blog1999 (8) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... ied products. Admittedly the company entered into a contract with NSL Limited formerly known as Nagarjuna Steels Limited, inter alia, for fabrication of Cable tray, erection of panels and control desk, inter panel cable laying and dressing laying of power, control and sending cables PLC wirings, earthing and other related jobs. 4. On or about 16-9-1993 allegedly the appellant instructed the respondent to undertake and render engineering consultancy service to NSL Limited at Hyderabad. A copy of the purported work order is contained in Annexure A to the application. The petitioner had raised a bill for a sum of Rs. 70,000 for the said job. A further instruction was allegedly issued by the appellant herein inter alia to undertake and execute engineering consultancy service and installation and cabling of Electrolytic Cleaning Line at the factory of Steelco Gujarat Ltd. Palej for a consideration of Rs. 3 lakhs. The purported work order is contained in Annexure C to the application. The petitioner allegedly completed the delivery job and submitted a bill in respect thereof but despite the same, no amount had been paid. On the basis of the aforementioned allegation, the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons made in the application. 10. As we indicated hereinbefore the basis of the claims of the Respondents appears to be the two certificates which are dated 11-11-1993 and 28-6-1994 and the purported letter dated 12-6-1995. The first certificate had been granted in respect of N.S.L. Cabling Work at Hyderabad by one M. Mohan Rao, Sr. Manager (Elect.) which reads thus : "This is to certify that M/s. Micro Trade Control, 1/3, Kumud Ghosal Road, Baisali, Calcutta-700 057 has completed all electrical jobs, for Thuristor Converter, PLC, Control Desk and Post and associated work is our C.R. Slitter Machine to our entire satisfaction. They were here from dated 9-9-1993 to dated 24-10-1993. The term was headed by Mr. H. Khan." 11. However, a bare perusal of the said certificate would show that therein no whisper has been made as regards doing any consultancy job by the respondent. His second certificate allegedly had been issued by Shri T.K. Manna for and on behalf of the appellant herein on 28-6-1994, which is to the following effect : "This is to certify that M/s. Micro Trade Control our electrical contractor for installation and cabling of Electrolytic Cleaning Line has do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Manufacturing Co. The Xerox copies of the relevant orders and collectively annexed hereto and marked A ." 13. Before the learned Trial Judge as also before us, the appellant had produced a number of vouchers in relation whereto the appellant in paragraph 3( m ) of the affidavit-in-opposition stated : "3( m ). And in fact the said Utpal Bhattacharya served the company from 1989 till July, 1994 and at the said two sites apart from having free fooding and lodging, free transport was given and exclusive right of user of a Scooter, he drew agreed amount of salary and allowances. I shall crave leave to refer to several vouchers which bear his signatures." 14. When questioned, the learned counsel appearing on behalf of the respondent, on instructions and upon grant of an opportunity to inspect the said vouchers by his client, stated that some of them bear his client s signature. 15. We have perused all the vouchers and therefrom it appears that all of them show that the respondent was in employment of the appellant-company. It may be as has been submitted by the learned counsel appearing on behalf of the respondent that no other document including the letter of appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would appear from paragraph 8 of the application. The application for winding up was filed on 12-6-1998 i.e., after a period of three years. 19. Although it has been strenuously contended before us that the purported acknowledgement dated 12-6-1995 had been referred to in various documents, the original of the said document has also been produced before us for the purpose of showing that the same had been sent a fax from the office of the appellant. 20. It appears that the said acknowledgement was made by one P.S. Sarkar, Director. The appellant herein had denied and disputed the signature of P.S. Sarkar in the said letter as the aforementioned P.S. Sarkar has affirmed an affidavit in support of the affidavit-in-opposition which is to the following effect : "The company has further discovered that letter dated 12-6-1995 does not bear my signature, neither any other officer has signed the same. The company is not the author of the said letter. The typewriter used is also not the typewriter which the company at all material time used to use. I crave leave to refer to and to produce all relevant correspondence kept in usual course of business to demonstrate that the typew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishnaswami [1965] 35 Comp. Cas. 456 that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. It has been observed that if a debt is bona fide disputed there cannot be neglect to pay within the meaning of section 434(1)( a ). If there is no neglect, the deeming provision does not come into play. This aspect of the matter has also been considered in Federal Chemical Works Ltd. In re [1964] 34 Comp. Cas. 963 (All.) and J. N. Roy Chowdhury (Traders) (P.) Ltd. v. Jainti Enterprises [1987] 61 Comp. Cas. 504 (Cal.). Thus, the allegations made by the appellants herein to the effect that no acknowledgement of its debt to the respondent herein was made on or about 12-6-1995 in terms of Annexure H to the application cannot be brushed aside. If eventually it is held that the said purported acknowledgement is a forged document, the claim of the respondent would be barred by limitation. 24. Having regard the facts and circumstances of this case we are, therefore, of the opinion that the learned Trial Judge erred in passing the impugned judgment and order inasmuch as the appellant had raised bona ..... X X X X Extracts X X X X X X X X Extracts X X X X
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