9911796707
TMI Blog2006 (7) TMI 335X X X X Extracts X X X X X X X X Extracts X X X X ..... between the petitioning-creditor and the company, the former supplied goods on behalf of the latter for the modernisation of the Rourkela Steel Plant, the value of those aggregating to Rs. 10,35,30,147.07 but out of those amount, only a sum of Rs. 6,71,87,352 was paid by the company thereby keeping a sum of Rs. 3,63,42,795.07 as due and payable. According to the petitioning-creditor, in spite of repeated requests of the creditor, the company had failed to pay the balance amount of Rs. 3,53,42,795.07 which included the accrued interest of Rs. 1,96,32,992 to the petitioning-creditor. It was further alleged that there was specific admission on the part of the company to pay off the dues of the petitioning-creditor but the company had failed to honour the same. It is alleged that in a meeting held between the parties, the company committed to pay Rs. 95 lakhs and that too, excluding the preliminary acceptance certificate, commissioning and final acceptance certificate but ultimately, paid Rs. 40 lakhs out of the said amount of Rs. 95 lakhs. Accordingly, a notice in terms of section 434 of the Act was given by the advocate of the petitioning-creditor and after receiving the said letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch, the same cannot be approved. Mr. Mitra contends that in view of the minutes of the parties recorded in the month of March, 1999, it was clear that the subsequent defence taken in reply to the notice of winding up and in the affidavit-in-opposition were apparently a cooked up defence only for the purpose of avoiding the winding up. Mr. Mitra contends that there is no material to indicate that his client was the sole supplier for the modernisation of the Rourkela Steel Plant and as such, there is no scope of arriving at the conclusion that the amount claimed by Rourkela Steel Authority was actually payable for the fault committed by his client. Moreover, Mr. Mitra contends that if goods supplied were defective, in terms of section 42 of the Sale of Goods Act, such rejection must be communicated within a reasonable period and the company could not show that any such notice was ever served upon the petitioning-creditor disclosing rejection of the materials supplied. He, therefore, prays for setting aside the order impugned. 9. Mr. Bose., the learned Advocate appearing on behalf of the respondent-company, has, on the other hand, opposed the aforesaid contentions of Mr. Mitra and h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, it is true that in the month of March, 1999, the company agreed to pay Rs. 95 lakhs within a specified period, but that was not unconditional and some duty was also cast upon the petitioning-creditor. There is also no dispute that the agreement between the parties subsisted for years and payments were made on account. Whether the claim of the respondent-company is justified or not can be ascertained only if evidence is taken in detail. From the materials that have been placed before us, we are not in a position to arrive at the conclusion that the defence of the company is a mala fide one or that there is no scope of adjudication of the dispute. 12. In our view, the learned Company Court followed the correct principles of law and thus, did not entertain the application. Even if, ultimately, some amount may be found to be due and payable to the appellant, for that reason the jurisdiction of the Company Court should not be invoked for winding up of the company and the said procedure should not be adopted as a tool of oppressing the company--Pradeshiya Industrial & Investment Corpn. of Uttar Pradesh v. North India Petrochemicals Ltd. [1994] 3 SCC 348 where the Supreme Court exhaus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manner. The finding recorded by the learned Company Court cannot be said to be perverse. It is now settled law that in the matter of exercise of discretion by a trial Court, the appellate Court should be slow to disturb the same and merely because from the self-same facts another view is possible, that is no ground for interference unless it is established that the trial Court proceeded on a wrong approach by not following the well established principles which are required to be followed while exercising discretion in one way or the other. We find that the learned single Judge, in the case before us, followed the well settled principles which are required to be considered while entertaining an application for winding up and did not ignore any important material on record, which if considered, would affect the ultimate conclusion. At this stage, it will be profitable to refer to the observation of the Supreme Court in the case of Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha AIR 1980 SC 1896, where the Apex Court while considering the scope of an appeal against the discretionary orders reiterated the well settled proposition of law that the appellate Court interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X
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