TMI Blog1990 (9) TMI 264X X X X Extracts X X X X X X X X Extracts X X X X ..... Board for the purchase of 100 trucks of bagasse from Mahalakshmi. The rate per quintal was fixed at Rs. 24 exclusive of sales tax. An advance of Rs. 20,000, by way of bank draft was also paid by Straw Board to Mahalakshmi. The contract entered into between the parties is attached as annexure P-1 to the company petition. In pursuance of the contract, Mahalakshmi supplied 100 trucks of bagasse to Straw Board. It is the case of Mahalakshmi that even after the supply of 100 trucks of bagasse as agreed upon between the parties, it continued further supply of bagasse beyond 100 trucks on the same terms and conditions during the whole crushing season. After the close of the season, Mahalakshmi, vide its registered letter dated 23/24th July, 1987, sent a statement of accounts to Straw Board and requested immediate payment of the outstanding sum of Rs. 3,95,521.36. Again a written demand for payment was repeated on July 28, 1987, and on August 11, 1987, but no amount was paid. However, vide letter dated August 29, 1987 (annexure P-2), Straw Board informed Mahalakshmi that it was arranging to send payment of the bills shortly. It has been further stated by Mahalakshmi that upon repeated re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out to the supplier and it had agreed to abatement of the price. With the reply to the petition, Straw Board had attached copies of the letters dated February 27, 1987, April 11, 1987, September 6, 1987, July 9, 1987, August 18, 1987, and November 5, 1987 (annex-ures R-1, R-3 to R-7 respectively), allegedly written by it to Mahalakshmi. It may be mentioned that in the written statement it has not been mentioned as to how these letters were despatched, whether these were despatched by registered post, U.P.C. or by recorded delivery. It has not been averred that these letters were duly received by Mahalakshmi. In the letter dated February 27, 1987 (annexure R-l), which is alleged to have been written by Straw Board to Mahalakshmi, it is mentioned that Straw Board agreed to take the supply of new and fresh bagasse in excess of its order on the assurance that the payment of excess amount of material supplied would be made over a period of 2-3 years at the convenience of Straw Board. The letter goes on to state that though the excess material was not required by it, the same was being purchased as a goodwill gesture. In letter dated April 11, 1987 (annexure R-3), September 6, 1987 (an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which had been intimated to them earlier, the cost of which came to Rs. 60,000 plus sales tax of Rs. 2,400 and transportation charges of Rs. 22,500. It was requested that the total amount which came to Rs. 84,900 may be credited to their account. It is evident that before the learned company judge the stand of Straw Board was that since there was a serious dispute regarding the business transactions and the amount claimed by the petitioner, Mahalakshmi, no case had been made out for the winding up of the company. It may be highlighted that the entire amount claimed by Mahalakshmi was disputed and no part of it was admitted to be payable. The learned company judge held that at no time earlier than the reply to the notice given by Mahalakshmi under section 434 of the Act was it stated by Straw Board, vide its reply dated March 30, 1988 (annexure R-8), that the material supplied was sub-standard. As far as the earlier letters to that effect allegedly written by Straw Board are concerned, the same have been denied having ever been received by Mahalakshmi. The learned company judge came to the conclusion that Straw Board had at no point of time disputed the correctness of the statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was not a case where Straw Board was unable to make the payment, rather it showed that the company was in a sound financial position. He further submitted on the basis of the averment in the miscellaneous application that his client owned land over 30 acres with a factory constructed thereon and owned a large number of shares in a number of companies valued at over Rs. 20 lakhs. Since, according to learned counsel, his client was ready and willing to pay the undisputed amount and for the rest it was furnishing a bank guarantee, the question of winding up the company did not arise. In support of the above-mentioned submissions, learned counsel relied on Amalgamated Commercial Traders ( P. ) Ltd. v. A.C.K. Krishnaswami [1965] 35 Comp. Cas. 456, a judgment of the Supreme Court, wherein it was held as under (at page 463): "It is well-settled that a winding up petition is not a legitimate means of seeking to enforce payment of a debt which is bona fide disputed by the company. A petition presented ostensibly for a winding up order but really to exercise pressure will be dismissed, and under circumstances may be stigmatised as a scandalous abuse of the process of the court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve at least paid or offered to pay the balance amount before the company judge. Since Straw Board was ready to make payment of the undisputed amount at the appellate stage, it was no ground to set aside the order of the learned company judge. He further submitted that the defence of Straw Board before the learned company judge was that the entire amount was disputed and nothing was payable, which defence has been found to be false by the learned company judge as the letters on the basis of which the defence was based were wholly fabricated just to raise a false defence. For this purpose, he relied on the judgment of the Calcutta High Court in T. P. Sahu and Sons Put. Ltd., In re [1982] 52 Comp. Cas. 182 and in Wastinghouse Saxby Farmer Ltd., In re [1982] 52 Comp. Cas. 479 and of the Delhi High Court in Smt. Madan Debi Kundalia v. Alpine Dairy Ltd. [1983] 54 Comp. Cas. 41 and on Softsule Private Ltd., In re: P. G. Bhatia and Co. v. Softsule Private Ltd. [1977] 47 Comp. Cas. 438 , a judgment of the Bombay High Court, We have considered the arguments of both the sides and find that there is no merit in this appeal. It has been rightly held by the learned company judge th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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