9911796707
TMI Blog2004 (10) TMI 340X X X X Extracts X X X X X X X X Extracts X X X X ..... eed rates, which were supplied to the company in due course of business. Although details of the invoices/bills vide which these supplies were made are allegedly given in Annexure-A to the petitioner, Annexure-A is in fact the power of attorney executed by the petitioner in favour of Mr. K.C. Khajanchi, an officer of the company who has filed these proceedings (It may however, be mentioned that reading of reply filed by the company would give an indication that there is no specific denial about the supplies and the main defence of the respondent is that goods supplied were defective and excess rates were charged in the bills). According to the petitioner, when the company failed and neglected to make the payments, payments were demanded vide letters dated 29th October, 3rd December, 1998, 19th January, 20th January, 1st February, 18th February, 25th February and 11th March, 1999. Still no payment was forthcoming. Instead in reply to the letter dated 29th October, 1998, the company sent the letter dated 30th October, 1998 acknowledging the liability and agreeing to pay the outstanding amount and undertook to release the payment in the month of November, 1998. Relevant portion of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Please confirm the above figures as on date and/or discuss in case of variation." 4. Thus final position as stated by the company itself was that after adjustment of the accounts, a sum of Rs. 33,43,134 was due and payable to the petitioner. However, the payment was not made and, therefore, further reminders followed. Ultimately, legal notice dated 5th July, 1999 was issued under section 434 of the Act calling upon the company to pay a sum of Rs. 32,73,606.14 paise as principal amount and Rs. 5,10,295.17 paise as interest which accrued thereon till 30th June, 1999. The company was asked to pay a sum of Rs. 37,83,902.31 paise within three weeks of the receipt of the notice. Reply dated 27th July, 1999 was received in which it was, inter alia, stated that the supplies were not effected strictly in terms of the orders but the same were not refused as the petitioner assured some adjustment in the rates of material; the company accepted the invoices raised after pointing out excess rates charged; issuance of letter dated 30th October, 1998 was denied and it was stated that liability was never acknowledged; receipt of certain letters was also denied and it was stated that at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the company was that the company owed the debt to the petitioner which was even acknowledged, learned Counsel for the company argued that there were serious and bona fide disputes raised by the company which related to the defective supplies made because of which the company was entitled to reduction in rates and there was no question of acknowledging any debt and the company was ready to pay the amount after reconciliation of accounts. It was also argued that the company had paid a sum of Rs. 16 lakhs during the pendency of these proceedings and as the petitioner had filed a suit for recovery of the amount in question, the present petition should be dismissed. 7. Before proceeding to discuss and deal with the respective contentions, some developments which took place in these proceedings, may be noted as they are of some relevance. The company has also taken the objection to the effect that Mr. K.C. Khajanchi who signed, verified and filed the petition on behalf of the petitioner was not legally authorised. When this matter came up for hearing in November, 2001, arguments were heard on this aspect and vide order dated 20th November, 2001, this preliminary objectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed by the petitioner which is pending adjudication. ( c )There are some disputes about the quality of goods, prices charged and reconciliation of accounts which should be settled by the civil Court in the facts of this case. ( d )The company has been able to demonstrate that it is a viable and profit-making company dealing with leading industrial houses employing around 150 employees as good outflow of funds. Therefore, it would not be in public interest to pass an order of winding up against such a company. ( e )In case a decree is ultimately passed in the civil suit against the company, it will be able to honour the same. 10. No doubt mere filing of the civil suit is no bar to continue the winding up proceedings. However, when all the aforesaid factors are taken into consideration, cumulative effect thereof persuades me not to entertain these winding up proceedings any further. Needless to mention, it is also open for the petitioner to file appropriate application in the civil suit which is pending before the Civil Court for passing of the decree on the basis of purported admission contained in letters dated 30th October, 1998 and 19th December, 1998 and if such an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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