9911796707
TMI Blog2013 (6) TMI 941X X X X Extracts X X X X X X X X Extracts X X X X ..... of balance issued by the company on January 21, 2010 and the statutory notice was also based upon such confirmation. The reply which the company gave to such statutory notice does not reveal any correspondences made between the petitioning-creditor and the company before the issuance of the statutory notice. However the confirmation of balance issued by the company was admitted in the reply with the explanation that the same was issued on a clear understanding that the petitioning-creditor shall make good and/or replace the inferior qualities of material supplied in terms of the various purchase orders. 2. The affidavit-in-opposition to the said winding up petition which came on April 4, 2013, contains various correspondences made between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner to replace the defective goods or the description of the defective goods are indicated. All the mails have proceeded as indicated above that because of the non-replacement of the defective goods, the corresponding buyer has not made the payment to the company and the company has suffered loss. 5. The genuineness and the very existence of some of the letters which bears the liability anterior to the date of the statutory notice is doubtful for simple reason that had it been in existence the reply which the company gave to the statutory notice must contain the description of those communications. The reply is absolutely silent about those communications and letters. It is for the first time in affidavit-in-opposition that the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities and the penalty having been imposed upon the company, the company has a bona fide defence to the claim of the petitioner and in the backdrop of the aforesaid facts the court refused to pass an order of winding up of the company. 7. It is certainly not the case in hand. The goods were supplied in terms of the purchase orders and not a single scrap of paper is produced by the company evidencing that it demanded the petitioner to replace the goods except those disputed and doubtful letters and/or e-mails which simply suggest that in failure to replace the defective goods the buyers refused to make the payments and in fact, deducted certain amounts claimed by the companies. 8. The second point which the company took is that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 per cent. per annum from the date of the statutory notice till payment. The company now says that they are agreeable to secure the said amount and the parties should be relegated to the civil proceedings. The stand of the company has been elaborately discussed hereinabove and this court has on unequivocally found that the company is unable to pay its debt and have raised the sham and dishonest defence, this court does not feel that the party should be relegated to a civil proceedings. 11. If the company pays the amount, as indicated above, within two weeks from date the winding up petition shall remain permanently stayed. 12. In default of the payment of the said amount within the period stipulated hereinabove, the petitioner shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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