9911796707
TMI Blog2018 (9) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... its buyer instructs ITC Ltd. the Consignor to supply the materials to the buyer, the consignee directly. The ITC Ltd. would accordingly, deliver and supply required materials directly to the customers of the petitioner as per their order. Thereafter, the petitioner would raise "E-1" sale bills on the buyer as per the norms and practice of the "E-1" sale system and would realise the payment thereof. The company issued purchase orders upon the petitioner for obtaining supply of diverse quantity of materials, namely, coated folding Box Board, Long Grain Cyber XL Premium Board of different size and specification (hereinafter referred to as "the said materials"), inter alia, on the term that the company would pay the price of the materials sold within 45 days from the date of delivery or submission of the bills whichever is later. According to the petitioner, in between May 21, 2013 and January 15, 2015 pursuant to various orders placed by the company it caused supply of diverse quantity of the said materials manufactured by ITC Ltd. to the company. In the premises, from time to time, the petitioner raised its bills/invoices which were received and accepted by the company without any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany to the petitioner on account of the principal amount of materials sold and delivered and on account of non-furnishing of CForm, together with interest thereon at the rate of 18 per cent, per annum. On April 9, 2015 the petitioner issued a notice under Section 434 of the Act of 1956 upon the company. By a letter dated April 29, 2015 the company, through their advocate, replied to the said statutory notice alleging that the materials supplied by the petitioner were not as per the orders placed by it and the invoices raised by the petitioner between May 21, 2013 and January 15, 2018 were reverted/adjusted by way of debit notes raised by the company due to the defective/unacceptable materials supplied by the petitioner. The company further alleged that as the materials delivered were required to be returned the question of paying sales tax or C-Form does not arise. It also alleged to have filed a civil suit before learned Civil Judge (Senior Division) at Sealdah, being Title Suit No. 53 of 2015, inter alia, for a declaration that the petitioner herein has no right or authority to claim and realise any amount for the materials as per the invoices mentioned in the schedule to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition, the petitioner has disclosed all the relevant purchase orders issued by the company upon the petitioner for obtaining delivery of the said materials, as well as the copies of invoice cum delivery challans issued by ITC Ltd., "E-1" sale invoices raised by the petitioner and the consignment notes and it is not the case of the company that it has not received the same or there is any mistake in any of the said documents. He further submitted that in paragraph 12 of the application the petitioner has specifically mentioned about the eleven invoices dated between September 25, 2014 and January 15, 2015 against which payment of Rs. 75,85,179/- remains outstanding and even in its plaint filed in the said suit the company has not disputed the receipt of the said invoices. With regard to the debit notes dated November 22, 2014, December 15, 2014, December 30, 2014, January 20, 2015 and March 21, 2015 Mr. Menon submitted that neither of the said debit notes were received by the petitioner and the company has not disclosed any documentary evidence to the contrary. He further argued that in support of the defence to the petitioner's claim the company has relied upon its electronic mai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present winding up application filed against it is not maintainable. I have considered the materials on record and the arguments advanced by the learned counsel appearing for the respective parties. It is well settled law that while dealing with an application under Section 433(e) of the Act of 1956, the Court has to consider three principles firstly, that the defence of the company is in good faith and one of substance; secondly, the defence is likely to succeed in point of law and thirdly, the company adduces prima facie proof of the facts on which the defence depends. This view is fortified by the decision of the Supreme Court in the case of Madhusudan Gordhandas and Co.-vs- Madhu Wollen Industries Pvt. Ltd. reported in AIR 1971 SC 2600. In the present case, the petitioner's claim against the company is on account of the 11 invoices dated between September 25, 2014 and January 15, 2015 particulars whereof are mentioned in paragraph 11 of the petition. In this connection, it may be noted that by a typographical mistake the last of the eleven invoices has been mentioned in 11 of the petition to be dated January 15, 2014 when from a copy of the said invoice disclosed at page 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner's claim against the company in this application relates to the eleven invoices dated from September 25, 2014 the minutes of the meeting held between the representatives of the respective parties on September 06, 2014 relied upon by the company is of no significance. Even the invoices mentioned in the electronic mail dated March 28, 2015 disclosed by the company as Annexure-"D" to its affidavit are different invoices and do not form part of the petitioner's claim in this application. Further, but for the said purported debit notes, the liability of the company to pay Rs. 7,44,027 for non issuance of the Sales Tax C-Form to the petitioner as claimed in this application is not in dispute. Now, I have already found that the company has not been able to prove receipt of any of the said purported debit notes by the petitioner. Therefore, the company has to pay the claim of the petitioner for not issuing the "C" Forms. In the facts of the present case, I find that the said suit filed by the company is nothing but an attempt to create some confusion and the same has been filed in an desperate attempt to set up a defence to the petitioner's claim in this application. It has been held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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