9911796707
TMI Blog2013 (8) TMI 1190X X X X Extracts X X X X X X X X Extracts X X X X ..... any, Ajanta India Limited, with all powers under the Companies Act, 1956, including the powers to take charge of the assets, affairs, books of accounts, records, documents, vouchers, bills, etc. of the Respondent Company and be directed to immediately take complete charge and control of the said Respondent Company. (d) that pending the hearing and final disposal of the petition, the Respondent Company, Ajanta India Limited, its servants, agents and officers be restrained by an order of injunction of this Hon'ble Court from in any manner directly or indirectly selling, transferring, disposing off or alienating, encumbering, parting with possession of or creating any third party rights on or to its assets or properties, in any manner whatsoever. (e) for ad-interim relief's in terms of prayer (c) and (d) Herein above; (f) for costs of the petition; and" 2. The petitioner has taken out present petition on the premise that the respondent has failed and neglected to make payment of the amount of bills raised by the petitioner company after having supplied certain goods for which purchase orders were placed by the respondent company. The petitioner company has claimed that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the statutory notice was not disputed and denied by the respondent company within 21 days or within reasonable time after the service of statutory notice. Ms. Jani, learned counsel, further submitted that, actually, at one stage, the respondent vide their communication dated 4.10.2009 admitted their liability to the extent of Rs. 26,92,937=00 and, then, subsequently, vide their communication dated 8.2.2012, the respondent company even offered to pay Rs. 15,00,000=00 in 3 installments and for the balance amount, the respondent company submitted that it will suggest further schedule, during which time, the balance amount will be paid. Ms. Jani, learned counsel, submitted that despite such admission, the respondent company not only failed and neglected to pay the dues of the petitioner company, but also failed to pay any amount even as per their own admission, assurance and schedule. Ms. Jani, learned counsel, submitted that the default on the part of the respondent company in making payment of the petitioner's dues and, in any case, the amount as per their own admission, demonstrates that the respondent company has lost its capacity and ability to make payment and discharge i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not maintainable and deserves to be dismissed. 5.1 Mr. Mehta, learned advocate for the respondent company, referred to the reply affidavit filed by the respondent company. On the strength of the details mentioned by the respondent company, Mr. Mehta, learned counsel, submitted that the respondent company has raised dispute as regards (i) quality of the goods/material dispatched by the petitioner company; and (ii) also about quantity of goods/material; and (iii) also with regard to the agreed rates; and (iv) freight charges. 5.2 Mr. Mehta, learned advocate for the respondent company, submitted that the said disputes/defence between the parties still survive and exist and therefore, the petition does not deserve to be entertained. Mr. Mehta, learned counsel, also submitted that the respondent company had not acknowledged in writing its liability to pay Rs. 37,58,194=87. Mr. Mehta, learned counsel, relied on the documents annexed to the reply affidavit and submitted that, at the relevant time, the respondent company had raised debit notes, which demonstrate the fact that the respondent company had raised dispute as regards the quality, quantity and rates at the relevant time, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that, at the relevant time, when the purchase orders were placed and the goods / material was supplied, the respondent company was having its office and establishment at Haryana which, subsequently, came to be shifted to Gujarat and in the said process of transfer, the original debit notes have been lost and therefore, when the petitioner came out with the claim, the respondent company prepared the copies of the debit notes on the basis of available record, including its ledger accounts, etc. and that therefore, in the typed copies, the said symbol has appeared. However, that does not mean that, at the relevant time, the debit notes were not raised and/or were not forwarded to and served on the petitioner company. So as to support the said submission, Mr. Mehta, learned counsel, relied on the document (email) dated 12.10.2012 [Annexure-I, Page- 170] and submitted that the said document is from the office of the petitioner company and in the said message also reference of debit notes is made which brings out that at the relevant time, the debit notes were raised and the officers of the petitioner company was aware about the said aspect. 8. I have considered the rival submiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng goods/material as mentioned in the purchase orders; and (2) it is also not in dispute that the rates at which the specified / described goods/material were to be supplied were agreed upon by and between the parties; and (3) it is also not in dispute that in accordance with the purchase orders, the petitioner supplied the requisite goods/material. Beyond this stage, the disputes surface, inasmuch as the respondent claims that part of the goods/material supplied by the petitioner were allegedly not as per the specification and/or were not matching with the agreed quality. Another dispute, which, as mentioned above, has surfaced is alleged shortfall in quantity and alleged upward revision in rates. The petitioner has claimed that the invoice raised by it in respect of the goods / material supplied to the respondent is as per the applicable rates at the time when the goods/material were supplied, whereas the respondent would claim that for the entire period, the rates of the goods/material in question were agreed and the invoice ought to have been raised as per the said agreed rates. 10.2 During the hearing, learned advocate for the respondent company, however, could not dispute or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was of substandard quality or was not as per the agreed specification. It is not even the case of the respondent company that it had returned the goods/material which according to it were of substandard quality. It is also not the case of the respondent that it had asked the petitioner to take back those goods/material [i.e. the goods/material which (allegedly) were of substandard quality]. In such situation, prima facie, it would appear that the respondent company, in all probability, consumed the goods/material supplied by the petitioner and that therefore, it would also appear that the dispute raised by the respondent company in its reply affidavit is merely an afterthought. A probability or possibility of such inference arises because the respondent has, [a] not produced even 2nd or 3rd copy of the debit notes and only subsequently, prepared (on computer) copies of debit notes and are placed on record; and [b] did not give any reply (raising any of the said contentions, which are now sought to be raised) in response to the statutory notice issued by the petitioner. 10.8 In light of these facts and in view of such circumstances, it appears appropriate to ascertain as to wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not bona fide. 49. In the first place, as far as the dispute about the delay in delivery is concerned, from the material on record it is clear that although the respondent-company had purchased material from another company called Sunshield Chemicals Ltd., the company was not required to pay any higher price as the said party has supplied the material to the respondent- company at a lower price. From the material on record, it is also clear that the delay, if any, on the part of the petitioner in supplying the material was on account of the outstanding dues of the petitioner which the respondent- company had not cleared within the stipulated period of credit. Moreover, this ground was never mentioned by the respondent-company in any of its previous letters prior to its reply to the statutory notice under section 138 of the Negotiable Instruments Act, which the petitioner was constrained to give after dishonour of cheques. 50. As far as the dispute about the quantity is concerned, apart from the fact that such a defence was never pleaded earlier prior to the reply to the statutory notice under section 138, the company has not produced any material even to prima facie show that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere not signed and that it would be a matter of evidence. 54. Even the statement made on behalf of the petitioner-company in the affidavit dated 17th July, 1998 that the respondent-company had furnished the statement of accounts showing that an amount of Rs. 12,89,608 was due from the respondent-company to the petitioner after adjustment of Rs. 3,50,000 towards the dues of the petitioner to Sunshield Chemicals Ltd. is not disputed by the respondent-company in the affidavit dated 28th July, 1998. The mere statement in the said affidavit that the unsigned statement of accounts was subject to the finalisation of the disputes cannot be accepted because after the petitioner served notice dated 2nd December, 1996 upon the respondent-company under section 138 of the Negotiable Instruments Act, the respondent-company had replied on 9th December, 1996 raising for the first time disputes as to the quality, delivery schedule and the price of the material and thereafter the aforesaid statement of accounts was given by the respondent-company to the petitioner on 20th February, 1997. The said statement of accounts refers to the credit for Rs. 3,50,000 being adjustment against the dues payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ations by the Court to present case, it appears appropriate to ask the respondent company, so as to demonstrate and establish its bonafide, to deposit a sum of Rs. 30,00,000=00 (Rupees: Thirty Lacs Only) [having regard to the fact that the respondent company itself, in its communication dated 4.10.2009 admitted liability of Rs. 26,92,937=00 and having regard to the fact that the said liability was admitted almost 4 years before, i.e. in 2009] with the registry of this Court. Time till 3.9.2013 to deposit the said amount is granted to the respondent company. If the respondent company fails to deposit the said amount, then, the Court will be obliged to accept the petitioner's submission that the respondent company is consciously and willfully neglecting to pay its dues and discharge its debts and it has lost its capacity to pay its dues and that it is equitable to order that the respondent company be wound up and therefore, the Court would be obliged to grant the order of admission of the petition. In the event of failure by the respondent company to deposit the aforesaid amount, within aforesaid time limit, the order of admission and order of appointing Provisional Liquidator ..... X X X X Extracts X X X X X X X X Extracts X X X X
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