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TMI Blog2015 (9) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... joinder, the petitioner-company has placed on record the purchase order pertaining to the year 2007 to 2011. He further referred that the entire material was duly received & accepted by the respondent-company without any objection and the total price of the material amounting to Rs. 77,83,191/- was duly supplied but the respondent-company has only paid a sum of Rs. 5,00,000/- through cheque and therefore amount of Rs. 72,83,191/- is still outstanding. He further referred to the telephonic reminders and as well as E-mail dated 29.10.2012 sent by the petitioner-company to the respondent-company and the said E-mail has been duly replied by the respondent-company, whereby they have acknowledge to pay outstanding amount and, therefore, respondent-company has admitted to pay the outstanding liability. He further submitted that the legal notice (Annexure P-7) dated 11.03.2013 was sent to the respondent-company through registered post, which was replied by the respondent-company, wherein, for the first time they raised dispute that the material supplied by the petitioner-company when sold by them to the clients for use, submitted the complaints and thus, the respondent-company lost poten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould not pass a winding up/admission order in a routine, where it has prima-facie been proved that the petition has been filed with a view to harass the respondent-company. Another judgment of this Court has been cited i.e. Tata Davy Ltd. Versus Steel Strips Ltd. 1994(3) R.R.R. 84 to contend that where the respondent-company has raised a bona fide dispute, winding up proceedings are not to be used without a normal alternative remedy of realizing the debt as available. Mr. Gopal Sharma, learned counsel appearing on behalf of petitioner in rebuttal submitted that in rejoinder, the petitioner-company has specifically stated that dealing with the respondent-company was since 2007 and this fact has not been denied and that purchase order of 2007 support such submission, thus, prays that present petition be admitted. He has relied upon following case law to contend that where the respondent company is unable to pay admitted liability, the petition should be admitted and wound up:- i) 1996(86) Comp Cas 703, Chhabra Steels Strips (P.) Ltd. Vs. Haspa Wheels Pvt. Ltd. ii) 1991(1) R.C.R. (Civil) 146, G.K.W. Ltd. Vs. Shriram Bearings Ltd. iii)2014(182) Comp Cas 276, Rama Peer Traders Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mosstanol-120 was ordered, though on the subject it has been mentioned as "supply of IPA/Butanol". In every purchase order, the respondent-company placed the order with regard to supply of Mosstanol-L or Mosstanol-120 or sometimes together with the same subject as extracted above. It is hard to believe that the respondent-company was misrepresented and was compelled to purchase the substitute instead of IPA and Butanol, inasmuch as that purchase order filed in the year 2007 onwards is in same fashion & similar to the one extracted above. In every purchase order, the respondent-company has ordered for Mosstanol-L and Mosstanol-120. It is basically the nomenclature being used in the "subject IPA/Butanol" being Mosstanol-L and Mosstanol-120 substitute and respondent-company had been using such material since time immemorial. Had respondent-company being misrepresented, there would not be occasion for the respondent-company to perpetually placed an order of the aforementioned materials i.e. Mosstanol-L and Mosstanol-120. The respondent-company in order to establish as to whether the material supplied by the petitioner-company was defective or not, enjoined upon obligation to place o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... @vaanix.com> Sent: Monday, November 19, 2012 12:53 PM Subject:- Excess material Dear Mr. Harish As par telephonic discussion with our MD. Sir with you. We have found your material lying with us from our all India branches are as given below:- 1. Mosstanol-L 56354 Kg. 2. Mosstanol-120 24170 Kg. So your are requested to collect your material from our ends. Regards Shreeniwas Singh From: Navin Chandra Jha {admin@vaanix.com} Sent: 27 November 2012 14:51 To: harish Cc: Suman Jha; atul; anand Subject: Re: payment due on 7/9/2012 Dear Harish Bhai, Its unfortunate and embarrassing for us too about the outstanding and its much of worry to have the huge stocks of your product lying at our warehouse. Thanks for your suggestion to remit on weekly basis but the situation is that customer is not accepting the product open heartedly. As been discussed, if we can manage at least half the stock with your help and the balance could be paid in certain time frame. I am again disappointed for the circumstances and sorry for the outcome, but am sure that both of us can sort this out. Best Regards Navin Navin Chandra Jha Managing Director Vaanix Industries Pvt. Ltd. 401, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of alleged defective material only to defray the payment of outstanding dues and the said E-mails were accompanied by any copy of the alleged complaints, much less, any type of plea taken by the respondent-company that the material as defective & in fact it is only a ploy not to make the payment. The case law relied upon by the respondent-company is based upon the facts on each case. Judgments cited do not support the stand of the respondent-company. However, in the instant case in view of categoric admission of the respondent-company suffered in the year 2013, this Court is made to believe that the respondent-company has admitted the liability to pay the debt. In order to lend support of the aforementioned observations, now I proceed to refer to the E-mails written by the respondent-company to the petitioner-company, wherein the respondent-company in the year 2013 i.e. after of writing the E-mails extracted above acknowledge to pay the outstanding dues by generating money by taking loan from the bank and even in the one of the E-mails, the respondent-company had admitted, that 40 tonnes material lying with them, they intend to sell it and generate capital. Copies of E-mails per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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