9911796707
TMI Blog2003 (7) TMI 572X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent against the petitioner in the said proceeding as spelt out from the prayer clause of the petition filed before the MRTP is only Rs. 30 lakhs whereas the admitted liability of the respondent is to the tune of Rs. 1.24 crores. The dispute that is sought to be raised before the MRTP Commission by the respondent does not appear to be bona fide as the same was an afterthought and is initiated by the respondent only after the petitioner has taken resort to the provisions of sections 433, 434 and 439 of the Companies Act. I am prima facie satisfied that such a plea is raised before the MRTP Commission in order to cause delay in payment of the admitted dues which cannot be said to be a bona fide dispute. It is also to be noted that at this stage the Company Court is only to be prima facie satisfied that the respondent is indebted to the petitioner and that it is unable to pay its debts. Indebtedness of the respondent to the petitioner is an admitted fact and that it is unable to pay its debt is also proved from the evidence on the record as the cheques issued by it were dishonoured by the bank when presented for encashment. The counsel appearing for the respondent sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17-3-2000, the petitioner supplied further material from time to time for the total invoice value of Rs. 84,91,600. As against the previous outstanding balance amount of a sum of Rs. 1,22,45,996 and against further supplies made, the respondent made various payments to the petitioner totalling to a sum of Rs. 82,01,196. It is also stated that these payments were made during the period between 18-3-2001 to 24-10-2001. There could be no dispute to the aforesaid position and the same is established from the records placed. 4. It is alleged that as the aforesaid outstanding amount had become substantial the petitioner refused to supply any further material with effect from September 2000 unless past dues were cleared. On the assurance of the respondent that past dues would be cleared, the petitioner resumed supplies on 12-11-2000. However, supplies with effect from November 2000 were made only against the letter of credit. The petitioner endorsed the balance confirmation of outstanding amount as on 24-10-2001. As per the said statement a sum of Rs. 1,24,74,195 was due and payable as on 24-10-2001. The aforesaid balance confirmation is placed on record. The respondent also issued vario ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmissions of their counsel. It is not disputed that the petitioner made supplies for the aforesaid amount as stated in the petition. That the respondent issued a balance confirmation note dated 17-3-2000 and again on 24-10-2001 which is not disputed and cannot be so done in view of the fact that the said balance confirmation is duly signed and stamped by the respondent. The registered office of the respondent company was situated at B-3/31, Azad Apartments, Aurobindo Marg, New Delhi - 110 016. The registered notices were sent by the petitioner to the aforesaid address on 30-10-2001 and on 6-11-2001 as indicated from the records placed on record. The case of the respondent is, however, that the same is not the registered office of the respondent company as the respondent shifted its office to 57, Kalu Sarai, Hauz Khas, New Delhi with effect from 11-10-2001. The said fact of change of the address of the registered office of the respondent was, however, brought to the notice and filed with the Registrar of Companies by the respondent only on 7‑11‑2001 when it submitted the statutory Form No. 18. It is also apparent on the face of the records that the cheques were issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stered office of the respondent in terms of the official records has to be held to be legal and valid and the present proceeding cannot be held to be not maintainable because the same could not be served on the respondent company as it in the meantime changed its office. There is full compliance by the petitioner as required by the provisions of sections 433 and 434 and the petition cannot be dismissed on the aforesaid ground as alleged by the respondent. 8. The second defence that is raised by the respondent is that a counter claim has been filed by the respondent before the MRTP Commission and a summary suit is also filed by the petitioner herein and the same is also pending for consideration and, therefore, the amount is disputed. It is submitted that in that view of the matter a bona fide dispute has been raised and, therefore, the parties should be relegated to a civil suit and the MRTP proceeding which are pending as of now. The fact that the petitioner made supplies for the amount as stated in the petition is not disputed. The balance confirmation given by the respondent on 17-3-2000 and 24-10-2001 also cannot be disputed as the same is duly signed and stamped by the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ission, the total claim of the respondent against the petitioner in the said proceeding as spelt out from the prayer clause of the petition filed before the MRTP is only Rs. 30 lakhs whereas the admitted liability of the respondent is to the tune of Rs. 1.24 crores. The dispute that is sought to be raised before the MRTP Commission by the respondent does not appear to be bona fide as the same was an afterthought and is initiated by the respondent only after the petitioner has taken resort to the provisions of sections 433, 434 and 439 of the Companies Act. I am prima facie satisfied that such a plea is raised before the MRTP Commission in order to cause delay in payment of the admitted dues which cannot be said to be a bona fide dispute. It is also to be noted that at this stage the Company Court is only to be prima facie satisfied that the respondent is indebted to the petitioner and that it is unable to pay its debts. Indebtedness of the respondent to the petitioner is an admitted fact and that it is unable to pay its debt is also proved from the evidence on the record as the cheques issued by it were dishonoured by the bank when presented for encashment. 10. The counsel appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
