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TMI Blog2007 (5) TMI 329X X X X Extracts X X X X X X X X Extracts X X X X ..... ur clients different invoices and the same were duly accepted by you without raising any objection whatsoever. Thereafter, our clients raised and submitted their bills which were also accepted by you without raising any objection whatsoever. From time to time you made various on account payments which were adjusted against the supply made by our clients. The transaction was of running, mutual current account. During the course of dealing on September 15, 2003, you had admitted and confirmed a sum of Rs. 1,38,93,948 was due and payable to our clients." 3. The innocuous words appearing in the first of those two paragraphs would indicate that it was routine transaction of orders being placed and supplies accompanied by bills therefor arriving at the company s gates. But the company had quite an elaborate defence in its prompt response of 8-2-2006. In the ten pages of the company s reply, there is not only the making of a plaint that is apparent, but it is obvious that the plaint was the basis of the reply. The company claimed that the transaction was not the run-of-the-mill and mundane exercise of goods being delivered against the orders placed. The company asserted in its reply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3, my client further received a show-cause notice dated 26-12-2003, from the Directorate of Revenue Intelligence, Kolkata Zonal Unit, Kolkata, calling upon them to show cause as to why proceedings should not be initiated against them under section 124 of the Customs Act, 1962, for diversion of the said goods imported and cleared under the aforesaid Bills of Entry in violation of the Advance Licence/Duty Exemption Entitlement Certificate Scheme and for evasion of customs duty. 15. From the said show-cause notice dated 26-12-2003, and the evidence of one of the directors of your client, i.e., Naresh Kumar Juneja, tendered before the Directorate of Revenue Intelligence Authorities in the proceedings under section 108 of the Customs Act, my client for the first time came to know that your client had sold a major portion of the said goods covered under the said thirteen high sea sale agreements from its godown to various other parties. 16. Prior to receiving the said show-cause notice, my client had no knowledge of such illegal acts of diversion by your client in respect of the said goods. 17. Because of such diversion and/or disposal of the said goods by your client as aforesai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was being raised and required by the petitioner for its accounting purposes only. The said confirmation was obtained from the company without actually effecting delivery of the goods covered under the thirteen high sea sale agreements. The fact of non-delivery of the goods covered under the thirteen high sea sale agreements has been admitted by the deponent in the proceedings before the Directorate of Revenue Intelligence, Kolkata Zonal Unit, Kolkata. It is obvious that the purported confirmation relied upon by the petitioner is neither an acknowledgement nor an admission of the alleged outstanding dues. It is denied that the company has acknowledged or admitted a sum of Rs. 1,38,93,948 or any part or portion thereof or any sum at all due and payable by the company to the petitioner as alleged or at all. It is denied that there was any business carried on by and between the parties after the company came to know about the fraudulent activities of the petitioner more fully stated hereinabove that the purported accounts being Annexure A to the said petition are correct." 6. The petitioner refers to cheques of total value of Rs. 57,66,209 dated between 9-5-2003 and 1-7-2003, sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statutory notice were irreconcilable. 10. There is no doubt that the defence is laboured. There is also no doubt that nothing remarkable took place between the company s letter of 3-6-2004, and its receipt of the statutory notice that could have resulted in the present contrived stand being taken by it. Yet, there is the petitioner s acceptance of the company s demand that accounts ought to be reconciled that is found in the petitioner s letter of 4-6-2004. The two short letters of the petitioner issued on 4-6-2004 and 24-6-2004, support the petitioner s claim that it is, indeed, the creditor and the company the debtor. But in the petitioner s acceptance found therein that the accounts were required to be gone into, the petitioner betrayed its awareness that its claim was not free from doubt. 11. In receiving a winding up petition, not only should the factum of indebtedness be affirmatively established, but the quantum thereof needs also to be conclusively demonstrated. If indebtedness of the company is apparent as to a part of the claim, the company court may receive such part of the petitioner s claim that is free from doubt and require the other, undetermined part to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any detailed reference or application. If a creditor cannot establish the company s inability to discharge its debts by demonstrating the quantum thereof, its petition need proceed no further. In the SRC Steel (P.) Ltd. s case ( supra ), the company had set up a counter-claim and had filed a suit based thereon. The petitioning creditor filed its written statement and served a counter-claim therein which was the same claim on which its subsequent petition for winding up was founded. The Company Judge admitted the petition. The Division Bench allowed the appeal on holding that, however, dubious a counter-claim of the company, if there was a possibility of its success, that would be enough to resist the winding up petition to proceed to the second stage. In Mannesmann Rexroth (India) Ltd. s case ( supra ), a Division Bench dismissed the appeal arising out of an order permanently staying the winding up petition upon finding that the appellant-petitioner s claim was not indisputable. In the instant case, despite the debtor-creditor jural relationship being established by the company s letter of 3-6-2004, there is no admission of the quantum of debt. If such relationship is establi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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