9911796707
TMI Blog2002 (12) TMI 506X X X X Extracts X X X X X X X X Extracts X X X X ..... yable on account of principal amount of Rs. 31,01,934 towards interest, aggregating to Rs. 58,64,520 outstanding in favour of the Petitioner and against the Respondent as on 30-6-2000. It is averred that as a partial payment of its liabilities, the Respondent had issued a cheque post-dated to 12-7-2000, bearing No. 714205 in the sum of Rs. 25,00,000 and had promised to clear the remainder shortly after 20th July, 2000. When this cheque was presented for encashment it was dishonoured by the Respondent s bankers with the endorsement "payment stopped by Income-tax authorities". The statutory notice dated 21-7-2000, demanding payment of Rs. 58,64,520 along with future interest at the rate of 21 per cent per annum was served on the Respondent Company who neglected to send any reply and failed to elicit any response indicating the Respondent s defence to the claims made therein. The Petitioner has pleaded that the Respondent has become commercially insolvent. 2. The defence to the winding-up petition is to be gathered from the following paragraphs of the petition. "2. That five cheques (with subject instrument being one amongst them) were reported lost by the replying respondent, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the next date. Copy of the criminal complaint, said to be filed by the respondent shall also be filed in this Court alongwith the affidavit. List on 25-2-2002". [Emphasis supplied] 4. By orders dated 18-9-2001, the Respondent company was directed to pay the Petitioner the admitted amount in terms of its Balance Sheet within four weeks. 5. Time to file the Audited accounts commencing from 1992-1993 till eight years thereafter was extended on 25-2-2002 but the said order has not been complied with till date, despite several intervening dates of hearing. These documents have been certified by the Respondent company and not by its Auditors. Eventually learned counsel for the Respondent had stated that it may be presumed that the amounts claimed in this petition has been shown in the list of sundry creditors. 6. On 14-11-2000 an F.I.R. was lodged by the Respondent with the S.H.O., Police Station, Daruhera, Rewari, Haryana stating that the said five cheques were stolen from the Respondent s factory Accounts Office, Dharuhera by Shri Sanjay Aggarwal, one of the partner of the Petitioner, and this statement has also been repeated in a complaint filed before the Additiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an otherwise intriguing fact of the instrument thus referred, tendered by a party who deserved to receive payments against material supplied and not the converse of proposition just cited illustrated unequivocally from a certified copy of answering respondent s statement of account (annexed at Annexure R-XIV to the present affidavit), wherein the instrument thus particularised finds no revelation, the proposition foregoing attains an irrebuttable standpoint. That succinct as could be, the ensuing conclusion may appear as an epilogue to containments foregoing. The present company petition seeks to recover Rs. 27,60,000.00 odd by way of principal sum. Appropriate against it, the sum of two figures elucidated in much vivid details in preceding section of the present affidavit and the recovery contemplated garners a reduction of enormous proportions, further adjust, figures against debits effected vide notes, accumulating an undisputed accession on part of petitioner-company and the result emerging coincides with a closing balance of Rs. 0.00 in answering respondent s books ( vis-a-vis the petitioner s account)." 9. It is the Petitioner s contention that the Respondent s clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... restingly, the values against aspect foregoing surpasses as otherwise formidable figure of Rs. 14,00,000.00 (Rupees fourteen lakhs only). The balance respecting the alleged principal amount embodies no less concoctions, fabrications and manipulations, an aspect demonstrated unequivocally from documents accompanying affidavit filed pursuant to orders of this Hon ble Court dated the 11th of February, 2002. 4. That least, the afore particularised petition requires an outright dismissal with an imposition of exemplary costs in an attempt to curtail and dissuade such frail and frivolous litigation in future." 11. In the enclosed Statement of Accounts, which appears to be a computer print out, whilst the sum of Rs. 15,35,235 and Rs. 1,35,235 has been shown, the sum of Rs. 14,00,000 is missing altogether, which sum cannot be denied because of a certification dated 17-8-2002/25-9-2002 by the Respondent s Bankers, Oriental Bank of Commerce available on record at the initiative of the petitioner. It is to the effect that this cheque of the petitioner was duly encashed but was not routed through the Respondent s operative account. Instead, on the Respondent s instruction an FDR for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stood dishonoured in July 2000, and the winding-up petition filed in September 2000 is clearly within time. When the Respondent s Account Statement is perused, it will be evident that the petition is not time-barred since, according to the Respondent, some material was rejected on that date. 13. Mr. Rastogi has also contended that if the dealings between the parties are to be governed by Article 1 of the Limitation Act, then each and every entry should be proved, rendering the summary procedure per se to be inappropriate. Assuming this proposition to be the correct exposition of law, I find that the Respondent s liability set out in paragraphs 8 and 12 of the petition has not been specifically denied. The Respondent was duty bound to plead which entry it denies. A vague, general and omnibus denial is not sufficient. Moreover, the respondent s case appears to be founded on its debit-notes and not on the correctness of each entry or several entries in the Statement of Accounts filed along with the petition. Pleadings are not pointless procedural formalities, but are purposeful; by it, parties put each other on caution as to the points of dissension. It is trite to repeat that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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