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TMI Blog2013 (12) TMI 1752X X X X Extracts X X X X X X X X Extracts X X X X ..... of the respondent-company came to Rs. 2,55,11,173/- as on 12.10.2009. The respondent company sought to discharge the dues to the petitioner by issue of post dated cheques but all these cheques were returned without being honoured. Therefore, a legal notice was sent by the advocate of the petitioner on 09.11.2009 threatening action against the respondent under Section 138 of the Negotiable Instruments Act, 1881 as well as Section 417/ 420 of the Indian Penal Code, 1860. Complaints were also filed with the Tis Hazari Courts, Delhi under Section 138 of the NI Act. In the reply to the aforesaid notice written by the respondent-company on 23.11.2009, it was pointed out that payments amounting to Rs. 1.73 crores were made in 2009 including the issue of some debit notes, that the cheques were not honoured because the mode of operation of the account was changed from single signatory to joint signatory in September, 2009 and that the respondent had requested the petitioner to return the cheques. 3. On 11.12.2009 the statutory demand notice under Section 434(1)(a) of the Act was issued by the advocate of the petitioner to the respondent-company calling up the latter to pay the sum of Rs. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a debit balance of Rs. 2,18,43,881/- which figure was also duly reflected in the balance sheet as on 31.03.2010 as part of the sundry debtors. The copies of the ledger account and the balance sheet as on 31.03.2010 are annexed to the rejoinder. The learned counsel for the petitioner submitted that as per his information the directors of the respondent-company are absconding and, therefore, filing a suit for recovery of the amount would be an ineffective remedy. 5. In his reply, the learned counsel for the respondent refuted all the contentions and submissions of the petitioner. He submitted that the petitioner has concealed the relevant and material facts and if the debit notes are taken into account, there was no amount outstanding. He submitted that since the goods supplied by the petitioner were defective, debit notes aggregating to Rs. 70,52,864/- were issued by the respondent- company, copies of which are placed in Annexure-R2 to the reply. He further submitted that the entries made in the ledger account of the respondent-company in the books of the petitioner were unilateral, false and fabricated. By way of example he submitted that the statement of account attached to the co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on behalf of the respondent-company was that the petitioner claimed to have sold more goods than what it had purchased, which is impossible. My attention in this behalf was drawn to Annexure-C to the financial statements for the year ended 31.03.2010, which is part of the balance sheet as on 31.03.2010 and gives the quantitative details of principal items of goods traded during the financial year which ended on 31.03.2010. 10. In support of the aforesaid submissions, the learned counsel for the respondent-company cited the following authorities: - (i) Madhya Pradesh Iran and Steel Co. vs. G.B. Springs (P) Ltd. Mehta Bright Steel (P) Ltd. : (2003) 117 Comp. Cas. 327 (Delhi) (ii) DCM Financial Services Ltd. vs. Praxis Consulting and Information Services (P) Ltd. : (2005) 4 Comp. LJ 586 (Delhi) 11. In his rejoinder, the learned counsel for the petitioner drew my attention to paragraph 14 of the reply filed by the respondent-company in which it was admitted that the respondent-company was facing financial turbulence. It was further submitted that a few transactions/ entries were cherry-picked by the respondent-company out of the ledger account of the petitioner in its books to mislead ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoice sent by the petitioner. They do not contain any detailed description of the quantity, etc. of the goods alleged to have been returned. The only description in all the debit notes is Raw Mtr. Fabric (central) . Moreover, no copy of the covering letter, to which the debit notes were enclosed, has been filed. This is in stark contrast to the debit notes which were in fact sent by the respondent-company and which find credited to the account of the respondent-company in the books of the petitioner. At page 16 of Annexure P-1 (colly.), there is a letter dated 10.05.2008 sent by the respondent-company to the petitioner stating that an amount of Rs. 3,64,081/- has been debited to the account of the petitioner, being the value of fabric returned to the petitioner. This covering letter is signed by a director of the respondent-company with his seal. The covering letter itself mentions the relevant challan numbers under which the goods were returned. It also describes the goods in detail. For example challan No.11412 is the relevant challan for return of 3 items: - (i) Polyster printer 52 516.75 Mtr. at 44.00 per Mtr. for Rs. 22,737/-; (ii) Polyster printer 42 2897 Mtr. 39.50 per Mt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t- company in the books of the petitioner. The statement of outstanding balance also gives the calculation of the interest on the late payments after 60 days and such calculations show that the petitioner charged interest of Rs. 36,67,292/-. The principal amount and the interest aggregate to Rs. 2,55,11,173/-. The statement of outstanding balance along with calculations of interest for the delay has been done in a detailed manner giving the number of days for and the outstanding amount for which interest is calculated. This is not a copy of the ledger account of the respondent-company but it is a statement showing the working of the interest on each and every bill which was not paid by the respondent- company. The claim of the respondent-company that there are glaring differences between the two is absolutely off the mark. Moreover, in the statement of account the payments made by the respondent between 13.05.2009 and 28.07.2009 are not separately shown in the first two pages since the transactions shown in these pages took place prior to the above dates. The payments have been duly credited in the ledger account of the respondent before arriving at the outstanding balance of Rs. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assets of the Respondent before sealing the premises in which they are kept. He may also seek the assistance of a valuer to value the assets. He is permitted to take the assistance of the local police authorities, if required. 22. Publication of the citation of the petition be effected in the Delhi Gazette, The Statesman (English) and Veer Arjun (Hindi) in terms of Rule 24 of the Companies (Court) Rules, 1959 ( Rules‟), by the Petitioner. The petitioner is also directed to furnish a complete set of petition to the official liquidator. 23. The Directors of the Respondent are directed to strictly comply with the requirements of Section 454 of the Companies Act, 1956 and Rule 130 of the Rules and furnish to the OL a statement of affairs in the prescribed form verified by an affidavit within a period of 21 days from today. They will also file affidavits in this Court, with advance copies to the OL, within four weeks setting out the details (including their value and location) of all the assets, both movable and immovable, of the Respondent company and enclose therewith the balance sheets and profit and loss accounts for the past three years and copies of the statements of all th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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