9911796707
TMI Blog2014 (4) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... that a sum of Rs. 17,23,236/- was, admittedly, due and payable by the respondent to the petitioner as on 03.07.2012. The debit note which is annexed to the reply is dated 13.09.2011. This debit note does not find any mention in the ledger account as provided by the respondent and is obviously a self-serving document which has been created subsequently, for the purposes of the present petition. It is common accounting knowledge that debit notes are primary documents on the basis of which entries are posted in the ledger. The fact that no entry for the alleged debit note appears in the ledger account furnished by the respondent itself indicates that no such debit note was issued at the material time. Neither the debit note nor the statement o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be defective. 2. The controversy to be considered in the present case is whether the defence raised by the respondent is bona fide or a sham defence. 3. The learned counsel has contended that the goods in question were supplied by the petitioner to the respondent during the period 07.12.2010 to14.06.2011. The learned counsel has also drawn the attention of this Court to the invoices raised by the petitioner for the said goods supplied by the petitioner to the respondent. It is further pointed out that the respondent also issued C-forms for the supplies made by the petitioner. The said C-Forms were issued on 26.08. 2011. It is submitted that there is no dispute that material had been supplied to the respondent and there is also no d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the said debit note which indicates the amounts in respect of the rejected material which is to be deducted various bills. 6. The learned counsel for the respondent has also raised a dispute regarding receipt of the statutory notice sent by the petitioner under Section 434 (1) (a) of the Companies Act, 1956 and has contended that the said notice was not received by the respondent. The address, as indicated on the postal receipt issued by the Postal Department, is contended to be inaccurate. 7. I have heard the learned counsel for the parties at some length. 8. There is no dispute that the goods were supplied by the petitioner to the respondent during the period 07.12.2010 to 14.06.2011. The form C furnished by the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. According to the learned counsel for the respondent, there was no written communication issued to the petitioner in respect of defective goods but oral communications are stated to have been made. The reply filed by the respondent also does not indicate that any written communications had been sent to the petitioner. 10. It is thus obvious that the contention that is now raised that the goods supplied by the petitioner were defective has been raised for the first time after the petition has been filed and is, apparently, a sham defence which is liable to be rejected at the threshold. 11. The contention that the respondent had not received the statutory notice is also without any merit as the receipts provided by the petitioner du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the respondent should file its reply at least 10 days prior to the next date of hearing. The Mediation was unsuccessful and the matter was again taken up by this Court on 24.05.2013. Although, this Court while referring the matter to mediation had directed the respondent to file its reply at least 10 days prior to the date, the same was not on record when the matter was taken up by the court on 24.05.2013. Accordingly, the matter was adjourned to enable the respondent to ensure that the said reply is placed on record. Despite sufficient time the respondent did not take any steps to place the reply on record till January, 2014. When the matter was taken up on 13.01.2014 one final opportunity was given to the respondent to place the reply o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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