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TMI Blog2016 (2) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondent-Company and to prepare an inventory of the office premises, books of accounts and all other assets of the respondent-Company, as required. At this stage, a request is made by Mr.Niral Mehta, learned advocate for the respondent-Company that the petition may not be advertised for a period of two weeks. The request is granted in the interest of justice. - COMPANY PETITION NO. 245 of 2014 - - - Dated:- 6-1-2016 - SMT. ABHILASHA KUMARI, JJ. FOR THE PETITONER : MR AS VAKIL, ADVOCATE FOR THE RESPONDENT : MR NIRAL R MEHTA, ADVOCATE ORAL ORDER 1. The present petition under Sections 433, 434 and 439 of the Companies Act, 1956, has been preferred by the petitioner with the following prayers: a) the said Company, Hiya Overseas Pvt. Ltd. be wound up by and under the directions, supervision and control of this Hon ble Court in accordance with the provisions of the Companies Act, 1956; b) this Hon ble Court be pleased to appoint the Official Liquidator, High Court, Gujarat, as Liquidator of the Company together with all its business, assets, properties, income and books of accounts with all the powers under the provisions of Companies Act, 1956; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent-Company, the petitioner raised invoices for an amount of US$ 1,079,133=00 approximately equivalent to ₹ 6,51,79,633=20 and submitted the same to the respondent-Company, along with other required shipping documents. According to the petitioner, all the invoices were duly accepted by the respondent-Company. A total amount aggregating to US$ 3,019,498=50 was due and payable by the respondent-Company, against which, the respondent-Company has paid to the petitioner, an amount aggregating US$ 1,940,365=50 only, from time to time, but has failed to pay the balance amount of US$ 1,079,133=00, which, as stated above, is due and payable to the petitioner. The petitioner repeatedly followed up with the respondent-Company for the payment of the balance outstanding amount. According to the petitioner, the respondent-Company assured the petitioner that it would make the payment but, ultimately, failed to do so. 4. The petitioner served a statutory notice of demand dated 01.04.2014, upon the respondent-Company, calling upon it to pay the balance amount. It is expressly stated in the notice that in the event that the respondent-Company fails to make the due payment within a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been entered into between the petitioner, the respondent-Company and M/s.Unisilk Limited, to the effect that the payment for the goods supplied directly by the petitioner to the respondent is to be made to M/s.Unisilk Limited. Nor is it stated that the payment for the goods supplied has been made to M/s.Unisilk Limited by the respondent-Company. 8. It is contended by Mr.Vakil that the Statement of Account showing the outstanding amount as per the seven invoices, was annexed to the statutory notice issued by the petitioner. There is no averment in the reply by the respondent-Company regarding the outstanding payment due to the petitioner. Further, it has not been mentioned in the reply that there is any dispute regarding the quality of the goods. The respondent-Company has come out with a new case for the first time before this Court, that the invoices are disputed and that there were issues regarding the quality and timely delivery of the goods in question. Had that been the case, nothing had prevented the respondent-Company from stating so in the reply. In any case, the contention that there were issues regarding the timely delivery and the quality of goods between the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the affidavitinreply, which have been produced by the petitioner with its affidavitinrejoinder. These Bills of Lading are not disputed by the respondent-Company. The said Bills of Lading correspond to the invoices produced by the petitioner. 12. It is next submitted on behalf of the petitioner that no communication between the respondent-Company and M/s.Unisilk Limited, to establish the alleged claim of the respondent-Company of making payment of the dues of the petitioner to M/s.Unisilk Limited has been produced on record. 13. It has now been contended by the respondent-Company that earlier, it was transacting business with the petitioner directly, but due to certain disputes, it was mutually agreed between the parties that the petitioner would send the goods directly to the respondent-Company which would make the payment for the goods to M/s.Unisilk Limited, who was to further transmit the payments to the petitioner. It is submitted that there is not a shred of evidence in support of the socalled mutual agreement between the parties. This defence has not been taken in the reply to the statutory notice and is clearly an afterthought. 14. On the strength of the above sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DB Act, are, therefore, not relevant insofar as the present petition is concerned. 19. It is submitted that the contention on the part of the petitioner that the defence now put up by the respondent is an afterthought, is not correct, as prior to the date of the issuance of the statutory notice, the payments for the goods received had been made by the respondent-Company to M/s.Unisilk Limited and it was for M/s.Unisilk Limited to further transmit the payment to the petitioner. 20. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition and the contents of the other pleadings. 21. From the submissions advanced by learned counsel and the material on record, there does not appear to be any dispute regarding the fact that business transactions did took place between the petitioner and the respondent-Company for which certain payments had to be made by the respondent-Company. In that sense, therefore, there is no denial by the respondent-Company regarding the dues to be paid to the petitioner in respect of the transactions referred to in the petition. The stand that is now being adopted by the respondent-Company is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply to the statutory notice, which has not been done. The entire defence of the respondent-Company, therefore, rests on the socalled mutual agreement between it, the petitioner and M/s.Unisilk Limited. There is no communication or document of M/s.Unisilk Limited to the effect that such an agreement took place and that it was acting as a conduit for payments between the respondent-Company and the petitioner. 24. Insofar as the genuineness and authenticity of the invoices produced by the respondent-Company is concerned, this Court would not, at this stage, advert to the said issue. However, it does appear from the material on record that the respondent-Company is indebted to the State Bank of India and public notices have been issued by the said Bank to this effect in addition to proceedings being launched under the SARFAESI Act and RDDB Act. In this background, the bald assertion on the part of the petitioner that the respondent-Company is capable of discharging its liabilities, primafacie, rings false. 25. The aspect that certain dues of the other creditors amounting to rupees fifteen to fifty lakhs have been paid by the respondent-Company would not detract from the fact that ..... 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