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TMI Blog2002 (9) TMI 558X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; Plat Butt Assembly 20,000 Nos. Deliveries were duly made and subsequent thereto 15 (Fifteen) Bills were raised covering the three consignments. The company had made part payments from time to time leaving a balance of Rs. 4,16,261, being the amount of the last three bills less a sum of Rs. 75,000 received on 18-2-1999. After the issuance of a legal notice under section 434 of the Companies Act, 1956 ('the Act') 'Central Sales Tax Declaration Forms C', were forwarded to the petitioner by the company, but the outstanding notified sum of Rs. 4,16,261 was not cleared. Under cover of the company's letter dated 13-1-2000 a statement of accounts was forwarded by it showing a sum of Rs. 3,79,757 due and payable to the petitioner. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that a bill of the company for a total value of Rs. 5,34,379 has been withheld pursuant to the addressee's letter dated 24-5-2001. It needs to be emphasised that this communication has been made after three years of the delivery of the disputed Plate Butt Assemblies. 3. Along with the rejoinder the petitioner has filed a letter dated 6-8-1998 from Shri K.K. Mukherjee (JSO), Government of India, Ministry of Defence (DGQA), Sr. Quality Assurance Estt. (Armaments), Hastings Post Office, Calcutta addressed to the Controller, Controllerate of Quality Assurance (SA), Ishapore, Nawabganj, 24-Parganas (N), West Bengal, the contents of which read as follows: "The firm M/s. Ashoka industries has been supplying the subject store for a considerable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... really appreciate the co-operation provided by your organization in the past. As you are aware, the company was not doing well and factually going down day by day, when I took over as M.D., at that time your total outstanding was approx. 7 Lacs. We have paid Rs. 4.38 Lacs to reduce your old o/s to Rs. 3.80 while we could only buy goods worth Rs. 1.18 Lac due to lack of defence orders. As discussed amongst yourself & Mr. Bhalla, we shall be paying you the cost of fresh material alongwith additional Rs. 50,000 out of year old outstanding payment with every supply of 5,000 Butt Plates in orders to square up your old account. We are now getting some good defence orders and may gradually come out of red, if your co-operation continues for som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the respondent-company to deposit the disputed amount. This amount may be retained by the Court and be held to the credit of the suit, if any. See Nishal Enterprises v. Apte Amalgamations Ltd. [Civil Appeal No. 720 of 1999 arising out of SLP (C) No. 14096 of 1998 dated 5-2-1999]. It appears to me that the following point may be added to the foregoing considerations. (vii)Generally speaking, an admission of debt should be available and/or the defence that has been adopted should appear to the Court not to be dishonest and/or a moonshine, for proceedings to continue. If there is insufficient material in favour of the petitioners, such disputes can be properly adjudicated in a regular civil suit. It is extremely helpful to draw upon the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le since this would constitute a completely separate transaction, even if the clearance given of the Ishapore consignment is to be ignored, Significantly, it has been conceded by the learned counsel for the company that in respect of the supplies made to Ishapore, ninety per cent of the price had already been received by the company. It is not immediately cleared whether the remaining ten per cent had also been paid. However, even if the entire payment had not been cleared, this would not either in law or in equity justify the company from withholding the payments of the petitioner. The Court should also not countenance a defence which has been articulated only in response to the winding-up petition. Where prior to this disputation the comp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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