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TMI Blog2010 (8) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... he whole claim will stand admitted. Upon furnishing of bank guarantee the respondent will keep the bank guarantee renewed from time to time subject to orders of the civil court. The petitioning creditors will not encash the bank guarantee without leave of the civil court. If no suit is filed the respondent may not continue with the bank guarantee. The winding up application is admitted advertisements are to be published once in The Times of India and once in Ananda Bazar Patrika. Publication in the Official Gazette is dispensed with. Such publication is to be made within four weeks from date. List this application six weeks hence. - C.P. NO. 170 OF 2010 - - - Dated:- 31-8-2010 - I.P. MUKERJI, J. Abhrojit Mitra and Ms. Manju Bh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count was for the period ending 31-3-2010 and another for the period 1-4-2010 to 30-4-2010. It is said that such statements of account show that Rs. 1,92,52,851 is due and owing by the respondent to the petition. Respondent s case : 6. Now, the case of the respondent. 7. First, it says that the above statutory notice was replied to by them under certificate of posting. According to the petitioner no such reply was received by them. In any event, no such reply was ever made. Thus there is a presumption of insolvency under section 434(1)( a ) of the Companies Act 1956. 8. Secondly, the petitioning creditor was to supply coke manufactured by one Krishna Coke (India) (P.) Ltd. Reliance has been placed on the writing "account Kri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atch there is no record of receipt. Secondly, a sender of a reply to the statutory notice under that mode of service is under a serious risk of facing an argument, which the petitioner now makes that no such reply to the statutory notice was made by the respondent. There is no answer why such an important document was allegedly sent in such a fashion. 14. Although, lot of verbal negotiations, discussion and promises have been pleaded, there is no contemporaneous document whatsoever, to substantiate the alleged defence taken by the respondent-company in their affidavit-in-opposition. There is not even a letter recording that the supplied goods were defective or that they did not match the quality of goods of Krishna Coke or that they dam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000 representing the value of cheques the payment of which was stopped. 21. But I take into consideration one factor. The goods were supplied up to 31-12-2009. This winding up application was filed on 14-5-2010. There is a whisper about damages being suffered by the respondent. But as I have said there is no evidence whatsoever to even remotely suggest it. However, considering that this winding up application was filed only six months after the close of supply and that damages caused to the boiler or furnace from allegedly defective supply may become evident or quantifiable at a later point of time, I use my discretion under sub paragraph "e" of the judgment in Mechalec Engineers Manufacturers s case ( supra ) for the balance part o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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