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TMI Blog2013 (2) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... e where required. The OL will file a status report in this Court within four weeks & also confirm that the interim order passed by the Court on 27th April 2004, and made absolute on 22nd November 2011, restraining the Respondent ‘from selling, alienating, transferring or parting with the immovable assets without the leave of the Court’, has been duly complied with. The OL will take necessary steps to ensure compliance with this direction by the Director of the Respondent. The Petitioner is directed to effect publication of the citation of this petition in the official gazette, ‘Statesman’ and ‘Danik Jagran’ in terms of Rule 24 of the Rules.The Directors of the Respondent are directed to strictly comply with the requirements of Section 454 of the Act and Rule 130 of the Rules and furnish to the OL a statement of affairs in the prescribed form verified by an affidavit within a period of 21 days from today. - CO.PET. 149 of 2005 - - - Dated:- 3-1-2013 - S. MURALIDHAR J. Petitioner Through: Mr. Tarun Gupta, Advocate. Respondent Through: Mr. Rajiv Bahl, Advocate for Official Liquidator. JUSTICE S. MURALIDHAR ORDER 1. This is a petition under Section 433 (e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner under the two invoices were returned. Further, the goods for the value of only USD 4055.00 were returned. Consequently on 2nd November 2004 a notice was sent by the Petitioner to the Respondent as well as its various Directors setting out the details of the transactions and the outstanding amount. It is stated by the Petitioner that till that stage there was no protest lodged by the Respondent regarding the quality of the goods supplied. However, in reply to the notice an unsubstantiated plea was raised by the Respondent about the goods supplied by the Petitioner being defective. Further, a plea of warranty for supplies was raised even though no such warranty had been furnished. 7. In the above circumstances, the present winding up petition was filed under Section 433 (e) of the Act on 26th April 2005. While directing notice to issue to the Respondent on 27th April 2005 this Court restrained the Respondent from selling, alienating, transferring or parting with the immovable assets without the leave of the Court. 8. In its reply to the petition, the Respondent does not deny the receipt of goods from the Petitioner or any of the transactions. But certain preli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent. The release of Rs. 1.79 crores of payment after the date of the said two invoices of November 2003 itself shows fairness on the part of the Respondent company. It also evidences that the Respondent company always have the intention of making payment provided the same falls due and payable. In the instant case, the goods supplied by the Petitioner over a period of time were defective, low quality and sub-standard goods. The defects in some goods were visible while in others, it was latent. For example, when the defect in the CDs is visible by a naked eye when this defect is a manufacturing defect. In other computer parts, which expressly carried a warranty, the stockiest, dealers and consumers have during this period of warranty returned the goods being defective or unworkable. 12. As far as the question of defects is concerned, the Respondent has not placed on record any document to substantiate such plea. Also it does not appear that the Respondent raised any such protest contemporaneously with the receipt of supplies from the Petitioner. Such defence appears to have been taken for the first time in the reply to the legal notice sent by the Petitioner to the Respondent. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of issuing notice to the Respondent prior to the appointment of the PL. In the circumstances, the Court set aside the order under challenge only to the extent of the appointment of the PL. 18. Turning to the present case, it is seen that along with the main petition, the Petitioner filed Co. Application No. 590 of 2005 seeking the appointment of a PL. At the hearing on 22nd November 2011, more than six years after the filing of the petition and after attempts at settlement failed, a statement was made on behalf of the Petitioner that he did not wish to press the application at that stage. Accordingly, the said application was disposed of. On the same date the Court made absolute the interim order dated 27th April 2005 restraining the Respondent from selling, alienating, transferring or parting with the immovable assets without the leave of the Court . Co. Application No. 591 of 2005 was disposed of. 19. Although the Petitioner has not subsequently filed any fresh application under Section 450 of the Act seeking the appointment of a PL, considering the fact that the present petition has been pending for more than seven years and none has been appearing for the Respondent f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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