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TMI Blog2018 (9) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... pay the claim of the petitioner for not issuing the “C” Forms. Winding up application against the company is admitted for ₹ 83,29,206/- (Rs. 75,85,179/- on account of the outstanding eleven invoices plus ₹ 7,44,027/- on account of non-furnishing of C-Forms) with interest thereon, at the rate of 8 per cent, per annum from the date of the statutory notice, that is, April 09, 2015 till payment is made. The petitioner is directed to publish the advertisement of this application once, in the English newspaper ‘The Statesman’ and once, in the Bengali newspaper ‘Bartaman’. The advertisements should indicate that the matter will appear before Court on the first available working day after the expiry of a period of three weeks from the date of the publications being made. However, publication in the official gazette will stand dispensed with. - C.P. No. 462 of 2015 - - - Dated:- 17-7-2018 - THE HON'BLE JUSTICE ASHIS KUMAR CHAKRABORTY For the petitioner: Mr. U.S. Menon, Advocate Mr. Swarup Banerjee, Advocate For the respondent : Mr. Soumabho Ghose, Advocate JUDGEMENT Ashis Kumar Chakraborty, J. In this application under Sections 433,434 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said twelve invoices for the sum of ₹ 76,67,533/-, the company later on paid ₹ 82,354/- against the invoice dated August 04, 2014 leaving the outstanding balance of ₹ 75,85,179/- on account of eleven invoices dated between September 25, 2014 and January 15, 2014. Subsequently, on or about February 25, 2015 by a payment voucher dated March 31, 2015 the company forwarded a post dated cheque dated March 31, 2015 of ₹ 25 lakh in favour of the petitioner towards part payment of its dues. When the company, without clearing the outstanding payment, demanded further supply of materials by an electronic mail dated February 28, 2015 the petitioner informed the company of its inability to resume any further supply unless payment of the outstanding dues is made. According to the petitioner, since it refused to supply any further materials without payment of its entire outstanding dues the company by its electronic mail dated March 28, 2015 made false allegations against the petitioner and requested the petitioner to return the said cheque dated March 31, 2015. Since the company had issued the said cheque for payment of its outstanding dues, the petitioner deposited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made against it in the petition. According to the company, the supplies of the said materials by the petitioner were not as per the specification mentioned in the purchased orders, the petitioner failed to follow the time schedule which was the essence of contract and there was even short supply by the petitioner. It has been alleged that the factum of short supply of the said materials by the petitioner is evident from the minutes of the meeting held on September 06, 2014 between the representatives of the parties. In its affidavit the company has also disclosed four debit notes dated November 22, 2014, December 15, 2014, December 30, 2014, January 30, 2015 and March 28, 2015 raised on the petitioner. It has further alleged that in spite of failing to discharge its obligation, by an electronic mail dated January 29, 2015 the petitioner demanded payment from the company. By an electronic mail dated January 31, 2015 the company informed the petitioner of defective supply of materials by it. Copies of the said electronic mails dated January 29, 2015 and January 31, 2015 issued by the petitioner and the company, respectively have been disclosed in the affidavit-in-opposition. By anot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim on the basis of the purported debit notes, the filing of the said suit challenging the fourteen invoices, including the eleven invoices giving rise to the petitioner s present claim, is misconceived and filing of the said suit cannot be construed as a bona fide defence of the company in this application. Relying on the unreported decision dated January 14, 2013 passed by the learned Single Judge of this Court in the case of Chemgen Pharma International Pvt. Ltd. - vs - Siemens Ltd. published in 2013 SCC Online Cal 618 and the Division Bench judgment of this Court published in 2013 SCC Online Cal 4741 upholding the said decision of the learned Single Judge Mr. Menon submitted that in the present case, when the company failed to prove receipt of any of the purported debit notes by the petitioner the said suit is nothing but an attempt to create some confusion and to prop up a mdicum of defence to the petitioner s claim in this application. Urging these facts he pressed for admission of this application. On the other hand, Mr. Soumabho Ghose, learned advocate appearing for the company submitted that the company has no liability to make payment of the said sum of ₹ 75,85, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated March 31, 2015 issued by the company forwarding the cheque for ₹ 25 lakh to the petitioner. The issuance of the said payment voucher dated March 31, 2015 has not been denied by the company. A bare reading of the said payment voucher makes it evident that the company had issued the said cheque dated March 31, 2015 for ₹ 25 lakh in favour of the petitioner towards payment of the five invoices bearing nos. KCE/E- 1/14-15/11, KCE/E-1/14-15/13, KCE/E-1/14/15, KCE/E-1/14- 15/15, KCE/E-1/14-15/16, KCE/E-1/14-15/14 forming part of the eleven outstanding invoices mentioned in paragraph 11 of the application. The said six invoices were dated between September 25, 2014 and November 29, 2014. In view of the clear admission in the said payment voucher that the said cheque dated March 31, 2015 for ₹ 25 lakh was issued to the petitioner on account of the aforementioned six specific invoices dated between September 25, 2014 and November 29, 2014 any explanation of the company for not being liable to honour the said cheque lacks bona fide. Further, until its reply to statutory notice issued by the petitioner under Section 434 of Act, in none of the correspondence issued to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge has been upheld by the Division Bench of this Court Chemgen Pharma International Pvt. Ltd. - vs - Siemens Ltd. published in 2013 SCC Online Cal 4741. Considering the facts of this case as discussed above I find that the defence sought to be put up by the company against the petitioner s claim are not in good faith and the same do not fulfil the conditions laid down by the Supreme Court in the case Madhusudan Gordhandas (supra). For the reasons as aforesaid, the winding up application against the company is admitted for ₹ 83,29,206/- (Rs. 75,85,179/- on account of the outstanding eleven invoices plus ₹ 7,44,027/- on account of non-furnishing of C-Forms) with interest thereon, at the rate of 8 per cent, per annum from the date of the statutory notice, that is, April 09, 2015 till payment is made. The petitioner is directed to publish the advertisement of this application once, in the English newspaper The Statesman and once, in the Bengali newspaper Bartaman . The advertisements should indicate that the matter will appear before Court on the first available working day after the expiry of a period of three weeks from the date of the publications being made. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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