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TMI Blog2014 (1) TMI 1820X X X X Extracts X X X X X X X X Extracts X X X X ..... unsel for the respondent to produce the copies, if any, of other debit notes said to have been sent by the respondent to the petitioner to substantiate its claim that the material supplied under disputed bills were actually returned to the petitioner. Till the close of the hearing, the respondent who was present in Court through its authorised representative, could not produce any of the debit notes though it was asserted that the respondent did send those debit notes. Therefore, it seems to be a case where the defence put up by the respondent is not bona fide, is mere moon-shine. Except one debit note and return of the goods to the petitioner, for which credit was given by the petitioner, no other goods were returned. The other goods supplied by the petitioner were used by the respondent for manufacture of cables. There is no evidence adduced by the respondent to prove that the alleged defects in the cables manufactured by it were on account of defective materials supplied by the petitioner, particularly when admittedly the respondent was getting material also from other suppliers. It seems to me that the respondent raised the bogey of loss recoverable from the petitioner only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supplied goods and debited the value of the goods in the ledger account on 28.1.2012, 29.1.2012 and 1.2.2012. 2. Since no payments were forthcoming, the petitioner requested the respondent to settle the account and it was pointed out that till such settlement takes place, no further supplies would be made. Since no payments were forthcoming despite several attempts made by the petitioner, it issued a legal notice on 21.5.2012 notifying the respondent that the balance outstanding should be paid within a period of 15 days from the receipt of the notice and if it is not so paid, the petitioner would charge interest at the rate of 18% per annum. It would appear that a copy of the ledger account was also attached to the legal notice. Despite service of the notice upon the respondent-company, including by e-mail, there was no reply to the same. The petitioner has therefore filed the present company petition for winding up. 3. Counsel for the petitioner submitted that since the respondent-company could not pay the balance outstanding, it should be wound up under section 433(e). It is pointed out that in order to ward off the payment, the respondent-company filed a suit in the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me and on quality parameters. The letter also says that the material will be returned to the petitioner with a debit note for all expenses incurred after receiving the same. Attention is also drawn to the inter office memo on the subject poor quality of PVC compound received from M/s. Rama Peer Trader . The memo was issued by the respondent-company to its purchase department head, drawing his attention to the defects in the quality of the material received from the petitioner and requesting him to look into the matter and do the needful at the earliest. There is also a letter dated 14.12.2011 written by Areva, a company to which the respondent claims to have supplied cables, to the respondent-company, drawing its attention to the defects in the cables manufactured by it and cancelling the orders placed for some of the projects. 5. In his brief rejoinder, the counsel for the petitioner submitted that the company petition is not a counter-blast to the notice dated 07.03.2012 said to have been issued by the respondent-company since even according to the respondent-company, the said notice was not served on the petitioner. The submissions made initially were reiterated. 6. I f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efers to the goods supplied by the petitioner. If the respondent was serious about the defects noticed in the material supplied by the petitioner, in addition to cautioning its own purchase department head, one would have expected it to bring the defects to the notice of the person who supplied the material i.e. the petitioner. Moreover, this office memo is dated 03.02.2012 by which time the last of the supplies had been made. This appears to me to be a self-serving record which cannot be given any credibility. The letter dated 03.02.2012 addressed by the respondent to the petitioner on the subject of poor quality of PVC compound of outer sheathe acknowledges the fact that the material supplied by the petitioner was used for our various buyers . It was for the respondent to have inspected the goods properly for defects. Once the goods have been used and the cables supplied to various customers of the respondent, who also admittedly used material supplied by several other suppliers, there should be strict proof to show that the defects found in the cables were attributable only to the material supplied by the petitioner. There is absolutely no evidence to this effect. The stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been admitted so in para 8 of the counter filed by the respondent. If the notice dated 07.03.2012 was not served on the petitioner I do not see how the steps taken by the petitioner commencing with the legal notice dated 21.05.2012 can be a counter blast to the same. 8. In the course of the arguments before me, I requested the learned counsel for the respondent to produce the copies, if any, of other debit notes said to have been sent by the respondent to the petitioner to substantiate its claim that the material supplied under disputed bills were actually returned to the petitioner. Till the close of the hearing, the respondent who was present in Court through its authorised representative, could not produce any of the debit notes though it was asserted that the respondent did send those debit notes. 9. Therefore, it seems to me to be a case where the defence put up by the respondent is not bona fide, is mere moon-shine. Except one debit note and return of the goods to the petitioner, for which credit was given by the petitioner, no other goods were returned. The other goods supplied by the petitioner were used by the respondent for manufacture of cables. There is no evi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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