9911796707
TMI Blog1998 (11) TMI 599X X X X Extracts X X X X X X X X Extracts X X X X ..... rding to the petitioner, the petitioner-firm is engaged in manufacturing of paper cartons and supplies the same against orders. After some negotiations and correspondence between the parties to the present case, the petitioner agreed to supply cartons of specifications asked for (5,000 cartons) at the rate of Rs. 18 per carton, as confirmed in the letter dated 16-2-1995, copy of which is annexed as annexure P-3 to the petition. In furtherance of the said letter, the petitioner manufactured 5,146 cartons and delivered the same to the respondent-company. Out of these cartons, 1,636 were accepted and 3,510 were rejected and sent back to the petitioner. Like this, various orders were placed. The orders placed and details of supply made by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 50,000 vide cheque No. 0281580 dated 15-7-1996, which was received by the petitioner on 18-7-1996, and the same was encashed. The balance payments were not made in spite of legal notice served upon the respondent-company. As such the respondent-company is stated to be commercially insolvent. The following amounts, as claimed by the petitioner, are due from the respondent-company : (Rs.) "( i ) Amount due for goods supplied 2,01,568.00 ( ii ) 10 per cent as sales tax 25,156.80 ( iii ) Interest 72,558.00 Total 2,99,282.80." 4. Consequently, the present winding petition has been filed, as the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear that there was an agreement between the parties to supply the goods. The rate was fixed and also that the material to some extent was rejected and there was a dispute of payment between the parties. Certainly a sum of Rs. 50,000 has admittedly been paid by the respondent-company to the petitioner. The present winding petition raises serious questions of dispute which cannot be settled without recording evidence in regard to the matters in controversy. The nature of serious and complex dispute between the parties is even clear from the fact that the supplies were admittedly rejected by the respondent-company but it is to the extent of material which was rejected. To determine the exact amount of rejected goods and further whether the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roper to refer to the entire fax message dated July 19, 1995, which was sent by the respondent-company to the petitioner and the copy thereof has been annexed as annexure P-11 to the petition : "Dear sir, Refer to your Fax dated 18-7-1995. I had asked you in my previous fax the rate of white duplex board CTNS. I had also mentioned that we want inner as well as outer board to be white. Do give me the rates for these cartons and the availability time. Also do note we could only load 3510 CTNS in your truck which had brought CTNS from Ludhiana. We have got balance stock of CTNS lying with us. So arrange to get them lifted as soon as possible. I have already spoken to accounts department regarding your payments. Regards. (Sd.)." 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentioned in the notice. The notice not only lacks in regard to the figures but also contends as to what transpired between April, 1996 to July, 1996, when the last payment was made. The winding up petition has been filed on 19-1-1998, after a considerable delay. A winding up petition is not a mode of recovery, if not an alternative mode of recovery simpliciter. The winding up proceedings are serious proceedings and must be taken out without unreasonable delay. On certain cause, it is not possible for this Court to reconcile the averments made in the notice and the petition. A notice for claiming the payment and for institution of a winding up petition in default thereof is the very foundation of a winding up petition and, therefore, it mus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent-company, as they were not returned to the petitioner. 14. This is a very serious controversy which needs to be adjudicated upon, after granting opportunity to the parties to lead oral and documentary evidence. The respective case of the parties on this issue is totally distinct and different. In fact the pleas taken by one party are totally different and distinct to the pleas taken by the other party. If the version of one succeeds, the other must fail in entirety. There is no doubt that the unpaid seller has no lien over the unpaid goods supplied but if he was paid on notice to lift the rejected material and he has failed, the position in law may be different. As I have mentioned, there are serious controversies which required deta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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