9911796707
TMI Blog2016 (12) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... e Companies Act, 1956 (hereinafter `the Act of 1956'). Briefly stated the facts are that through a Memorandum of Understanding (MOU) dated 17-4-2012 the respondent company agreed to purchase 1208.01 metric tonnes of HR coils from the petitioner company (hereinafter `the petitioner'). Pursuant thereto in December, 2012 the petitioner dispatched HR coils from its Bokaro Steel Plant to destination Kanakpura, Jaipur as designated by the respondent company by rail between December 25 and 26, 2012 through invoices Nos.50765-67, 50775, 50836 dated 25-12-2012 and 51078-81, 51085, 51088-89, 51104-06, 51109, 51111-12, 51147, 51196 dated 26-12-2012. The respondent company was required to make full payment against the aggregate value of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the outstanding due debt to the petitioner. The petitioner in the circumstances appears to have filed a money suit for recovery of the due amount of Rs. 4,82,72,269/- before the Additional District Judge No.6, Jaipur. The case of the petitioner in the winding up petition subsequently filed is that the amount due and payable to it for goods supplied and still largely retained by the respondent company is an undisputed debt, which it was under a legal duty to pay but failed despite a statutory notice. This neglect to pay the due debt has rendered it "deemed insolvent" and liable to be wound up under Section 433(e) of the Act of 1956. It has also been submitted that under the circumstances it is also just and equitable in the general int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany in respect whereto several sums on account of credit notes for incentives, defective supplies, other losses suffered by the respondent company and goods returned to an extent of Rs. 1,65,94,500/- on 13-3-2013 entitle it to a set off from the amount due to the petitioner for supply of HR coils under purchase order dated 5-12-2012. These due sums are reflected in the respondent company's ledgers maintained vis-a-vis the petitioner and on adjustment thereof against the supply of HR coils in issue a sum of Rs. 44,352/- is in fact due against the petitioner. No amount at all, as a debt or otherwise is due and payable to the petitioner by the respondent company. It has been submitted that consequently the claim of the petitioner co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company in its contemporaneous letter dated 10-1-2013, wherein it was categorically stated that the cheque dated 3-1-2013 for Rs. 4,82,72,269/- was dishonoured for issues with the respondent company's bankers and further that the amount under the cheque would be paid by 20-1-2013. It has been submitted that pendency of the money suit at the instance of the petitioner with regard to the same transaction on which winding up petition is based or for that matter resort to criminal processes for fraud by the directors of the respondent company as also for breach of statutory provisions under the Negotiable Instruments Act, 1881 is of no event for the maintainability of the winding up petition. The statutory provisions for filing a petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition. In fact even counsel for the respondent company has not appeared. The case of the respondent company that the winding up petition has been filed as a pressure tactic to recover alleged debt which is seriously disputed bonafide on substantial grounds and entails misuse of the salutary winding up provisions of the Act of 1956 has been considered in detail and rejected vide order dated 22-4-2016 when the winding up petition was admitted. None has appeared for the respondent company to persuade the court to take a different view. From the facts of the case detailed in the order of admission of the winding up petition on 22-4-2016 it cannot be held that the petitioner- Company had not approached this Court with clean hands making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly established that goods (HR Coils) were indeed supplied to the respondent-Company and admittedly receipted by it. Payment thereof by way of a cheque issued was not made for reason of the cheque being dishonoured. The respondent- Company vide letter dated 10-1-2013 undertook to make the requisite payment by 20-1-2013. The promised payment was not made. A debt thus obtained. As earlier held the said debt is not disputed on any substantial and bonafide grounds. The disputes to the debt due as raised in the reply to the winding up petition are a mere after thought and without substance. Aside of the aforesaid, in any event, admittedly goods receipted or part thereof retained was more than Rs. 1 lac. They were dishonestly not returned and ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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