9911796707
TMI Blog2001 (10) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... he month of July, 1998, for supply of chemicals. Pursuant to such agreement supply of chemicals commenced in the month of July, 1998, itself and bills were issued in respect of such supply by the petitioning creditor to the said company. It is also the case of the petitioning creditor that upon receipt of the supply, the said company did not raise any objection about the quality of the same and certain bills were paid from time to time. The payment of 11 bills dated between 15-5-1999 and 23-9-1999, for a total sum of Rs. 1,18,648 became due. The particulars of those bills have been given in a separate statement which is marked B to the petition. Since the payments of the said bills have not been made, the petitioning creditor issued a debit note of Rs. 33,119.28 dated 31-10-2000, on account of interest up to that date on the aforesaid principal and the same was presented before the company for payment. 3. The case of the petitioning creditor is that after the receipt of the said debit note, the said company for the first time allegedly questioned the quality of the goods supplied by the petitioning creditor by a letter dated 28-11-2000, and, in the said letter, reference was alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 10-8-1999, were disclosed in the affidavit-in-opposition. It is also the case of the said company that they received several complaints from the customers. The case of the said company is that after receipt of the statutory notice, it replied by a registered letter dated 8-1-2001, complaining of inferior quality of the materials. In the affidavit-in-opposition, it has also stated that it is not the fact that the said company is unable to pay the debt. It has been admitted in the opposition that in view of the dispute with regard to the quality of the materials supplied, there was delay in making payment of the prices of the materials. 5. In this proceeding, a reply has been filed by the petitioning creditor and in the said reply, it has been stated that the affidavit-in-opposition to the winding up petition was affirmed by one Sri Nandlal Bhattar, who is neither a director, nor the principal officer of the said company. It is further submitted that the dispute raised in the affidavit-in-opposition against the claim of the petitioners is not a bona fide dispute and it was stated that only after receipt of the said debit note sent by the petitioning creditor on account of interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was ever made to the petitioning creditor by the said company to improve the quality of its supply since the goods supplied by it was according to the standard specification. It was also pointed out by the petitioning creditor that over the issue relating to payment of bonus disputes arose between the employees and the management of the said company and the hosiery factory of the said company stopped functioning from early October, 1999, and ultimately, a lock-out was declared in the first week of January, 2000. It was also stated that in view of such declaration of lock-out, the said company was not in need of any further chemicals and as such, stopped payment of the pending bills of the petitioning creditor. It was also stated that the alleged complaints of the customers do not show that the chemicals supplied by the petitioning creditor were used by those customers. It is not the case of the said company that apart form the petitioners, they have not purchased chemicals from any other source. 7. In the context of the aforesaid contentions of the rival parties, the following questions fall for decision of this court : 1. Whether, the court shall proceed to accept the complain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows : ". . . We are satisfied that the alleged letter of retraction was only a myth. The certificate of posting might lead to a presumption that a letter addressed to the Assistant Collector of Customs was posted on August 14, 1980, and in due course reached the addressee. But that is only a permissible and not an inevitable presumption. Neither section 16 nor section 114 of the Evidence Act compels the court to draw a presumption. The presumption may or may not be drawn. . . ." (p. 318) 11. The learned judges in the said paragraph further held that the presumption may be drawn initially but the court on a consideration of the evidence may hold that the presumption is rebutted and may arrive at a conclusion that no such letter was ever dispatched or sent. The learned judges also made it clear that there are cases where such postal services and postal seals have been found to be manufactured. 12. The next case cited on this point was rendered by a Division Bench of the Madras High Court in the case of Malleswara Finance & Investments Co. (P.) Ltd. v. CLB [1995] 82 Comp. Cas. 836 . In that case, the decision of the Company Law Board on the question of oppression under sections 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , nor has it produced any account to show the expenses incurred for sending those notices. Even the certificates of posting have not been annexed to any of the affidavits filed by it. The company had got notice of the fact that the petitioning creditor was disputing the genuineness of those notices allegedly sent under certificate of posting from the very beginning, viz., from the statutory notice itself, which was sent by it on 8-12-2000, and also its subsequent letter dated 17-1-2001. Apart from that, the said company did not refer to the letter dated 29-6-1999, said to have been sent under certificate of posting in its subsequent letter dated 28-11-2000. In that letter dated 28-11-2000, only one letter allegedly sent under certificate of posting, viz., letter dated 10-8-1999, has been referred to. 17. Thus the stand of the company is very unusual and, therefore, the subsequent introduction of the letter dated 29-6-1999, in its reply dated 8-1-2001, to the statutory notice is highly suspicious. 18. Apart from the fact, it is an admitted position that even after allegedly sending those two letters dated 29-6-1999, and 10-8-1999, which purportedly contains complaints about the qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the Court of Appeal in case of Welsh Brick Industries Ltd., In re [1946] 2 All ER 197. Lord Greene, Master of the Rolls, speaking for the Court of Appeal held that there is no difference between a bona fide dispute and dispute on substantial ground. However, the learned judge held that even though leave to defend has been given in a winding up action that does not prevent the company judge from exercising his discretion to find out whether it is a bona fide dispute and for the said purpose, the judge may go into the evidence, which is placed before him. 23. Considering the facts and circumstances of the case the learned judges of the Court of Appeal held that the county court judge has come out with the right conclusion that there was no bona fide dispute about the dues of the petitioning creditor. Therefore, the court was of the view that a mere probability of a defence is not enough to deny relief to the petitioning creditor in a winding up proceeding. What has to be established is the existence of a bona fide dispute which is likely to succeed. 24. The next judgment on this point cited before me by both the sides is the decision in the case of Madhusudan Gordhand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Chem-Crown India Ltd., v. Sports Equipment (P.) Ltd. [2001] 103 Comp. Cas. 1002. In that case goods were supplied to the company by the petitioning creditor for a long period of time. There was no complaint about quality but the complaint about quality was made after its use in the manufacture of the products which were sold to customers. In that case the sale contained a stipulation that responsibility of the seller of the goods ceased upon the goods leaving the seller's factory premises. In that case adhesives were supplied and complaints were made only after the adhesives were consumed in the manufacture of shoes and shoes were sold to the retailers and other customers. In the instant case also all the complaints of the company's customers are all June, 1999. No complaints were made when the goods were delivered to the said company. There was no pleading in this case also that the quality of the chemicals could not be tested before the company supplied them to the customers. It is, therefore, clear that the complaints about poor quality of the goods were not made by the company but by the customers of the company after the goods had been used. In that view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny and even though this was pointed out, the petitioner company refused to rectify the defects. As such it was held that the petitioner-company was not entitled to the relief claimed for. In the facts of those cases, the learned judges held that there was a bona fide and substantial dispute about the liability of the respondent-company to pay the amount which formed the subject-matter of the winding up petition. Apart from that, the court also held that the winding up petition was time-barred inasmuch as the petition was filed on 10-2-1984, and the debts which were mentioned in the winding up petition were of June, 1980, September, 1980, and invoice was dated 20-1-1981. In view of those facts pointed out above, the winding up petition was dismissed. Therefore, the ratio in the said decision was arrived on totally different facts and is not attracted here. 31. Learned counsel for the said company also relied on a decision in the case of Bengal Luxmi Cotton Mills Ltd. v. Mahaluxmi Cotton Mills Ltd. AIR 1955 Cal. 273. Learned counsel relied on the said judgment in order to contend if there is nothing to show that if the dispute is decided against the company, the company is unable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at there is no admission by the appellant-company. On the other hand, the appellant-company has seriously disputed the claim of the petitioning creditor. In the context of those facts, the learned judges in para 7 have held that the winding up petition is not maintainable inasmuch as the claim of the petitioning creditor is seriously disputed. Those facts are not present in this case and the decision of the Division Bench rendered on the peculiar facts of that case cannot be made applicable here. 34. Mr. Sen also relied on another judgment of the Rajasthan High Court in the case of Asu Singh Rajput v. Gehlot Enterprises Ltd. [1994] 1 Comp. LJ 449. Learned counsel relied on para 4 of the said judgment. In that case, the winding up petition was based on an alleged promissory note and statutory notice was served by the petitioning creditor calling upon the company to pay the money mentioned in the promissory note along with interest. The company failed to pay the same and the winding up petition was filed. The company resisted the said claim on the ground that the promissory note was a forged document and on the basis of forged document no debt can be recovered. The court ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X
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