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TMI Blog2011 (7) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... re the company has not only absolutely no defence but has tried its best, to deceive the court, into believing by false projection of statement of accounts and absolutely erroneous allegations that no work was done and false bills were raised by the petitioning-creditor, that the company has a defence. Such a company cannot be said to have any commercial morality - this winding up application is admitted - C.P. No. 69 of 2010 - - - Dated:- 28-7-2011 - I.P. Mukerji, J. S.B. Mookerjee, Ratnanko Banerjee and T. Aich for the Petitioner. H.K. Mitra, Debdutta Sen, Ms. Suchismita Ghosh and M.K. Seal for the Respondent. JUDGMENT 1. This is a winding up application at its admission stage. The company is very old. It was incorpor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the petitioning-creditor. There is an endorsement at the foot of the letter "balance confirmed" and signed. I presume that it is the signature of the petitioning-creditor. That letter was acted upon. The petitioning-creditor by his letter dated October 23, 2008, sent the above information to the Assistant Commissioner of Income-tax Department, 1/2, Naya Basti, Jalpaiguri. 3. It was further said on behalf of the petitioning-creditor that by the statutory notice dated January 15, 2010, issued on behalf of them the said sum of Rs. 20,43,158 was claimed. Detailed statement of accounts was also sent with that letter which ran into 18 pages. That statutory notice was replied to by the company by their letter dated February 4, 2010. The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment of Rs. 2,65,977. 5. It was submitted at the time of arguments that the accounts mentioned in the statement annexed to the statutory notice were not mutual. Furthermore the admission or acknowledgment was made as on March 31, 2003. That acknowledgment or payment could not be taken to be acknowledgment of debt as on the date of consideration of this winding up application. 6. Furthermore, the claim of the petitioning-creditor was barred by limitation. The company has instituted the suit being Money Suit No. 3 of 2010 in the court of the learned Civil Judge (Senior Division), Jalpaiguri claiming recovery of the alleged excess amount paid by the company to the petitioning-creditor together with the declaration that the company w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o fully disbelieve, the alleged defence taken by the company that 13 bills were unauthorised and that the rest of the claim of the petitioning-creditor had been paid in excess. Upon segregation of the value of the said 13 bills which make up the entire claim of the petitioning-creditor, nothing was payable by the company to the petitioning-creditor, according to the company. If that had really been true, the accounts would have at least revealed that the entirety of the admitted sum of Rs. 22,56,571 had also been paid. The accounts show on the face of them that Rs. 17,26,619 only out of Rs.22,56,571 has been paid. 9. Moreover, according to the affidavit of the company, bills were continuously raised by the petitioning-creditor and paid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But all these cases have dealt with situations where either there is substantial defence or some defence is disclosed with the possibility of a fuller defence being disclosed later or practically no defence is disclosed. 12. The hon'ble Supreme Court in the case of Mechalec Engineers Manufacturers v. Basic Equipment Corporation AIR 1977 SC 577 (paragraph 8) has also said that where there is no defence, the court can out of sympathy relegate the claimant to a suit upon the defendant furnishing security. Although the decision was made in a case asking for summary judgment, the principles are applicable in winding up. 13. As the payment pattern as reflected in the statement appended to the statutory notice shows part payment and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioning-creditor for a sum of Rs. 20,43,158, as claimed in the winding up petition. 20. I refuse to award interest as claimed. Interest will be payable on the above sum at 8 per cent. simple interest from October 16, 2009, being the date of the last bill till payment. 21. Therefore, this winding up application is admitted. This application should be published by the petitioning-creditor once in The Telegraph and once in Anandabazar Patrika within six weeks from the date but such publication should not be made for a period of two weeks from the date to enable the company to approach the hon'ble appeal court if they so desire. Publication in the Official Gazette is dispensed with. 22. List this application seven weeks henc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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