TMI Blog2002 (8) TMI 781X X X X Extracts X X X X X X X X Extracts X X X X ..... 21st May, 1997 the respondent sent to the appellant-company the statement of accounts showing an outstanding balance of Rs. 6,22,433.47 payable as on 31st March, 1997 by the appellant-company to the respondent. In the same letter the respondent mentioned that on the appellant-company s failure to confirm the correctness of the enclosed statement of accounts within seven days from the date of receipt thereof, it would be presumed that the appellant-company had nothing to say against the said statement of accounts. That letter dated 21st May, 1997 was received by the appellant-company under its seal and signature. By similar letters dated 18th June, 1998, 7th April, 1999 and 6th May, 2000 the respondent sought confirmation from the appellant-company of the outstanding balances of Rs. 8,03,658.47, as on 31st March, 1998; Rs. 8,42,227.47 as on 31st March, 1999, and Rs. 10,16,233.83, as on 31st March, 2000 respectively. In all those letters it was mentioned that on the appellant-company s failure to dispute the correctness of the statement of accounts, they would be presumed to be correct. All those letters were received by the appellant-company by putting its seal and signature. None ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2001. The respondent contended that the appellant-company was liable to be wound up, as it was unable to pay its debts. He also produced copies of letters dated 21st May, 1997, 18th June, 1998, 7th April, 1999 and 6th May, 2000. A letter dated 30th November, 1999 was also annexed to the said company petition to show that a sum of Rs. 1,36,027.36, being the outstanding dues of one Camellia Tea Group Private Limited (hereinafter referred to as Camellia ) run by the same management, had been assigned to the appellant-company. 5. The appellant-company contested the said company petition by filing an affidavit-in-opposition dated 30th August, 2001. The appellant-company s case was : "The letters dated 21st May, 1997, 18th June, 1998, 7th April, 1999, and 6th May, 2000, whereby confirmation of balances had been asked for, were manufactured and fabricated documents, and the same had never reached the appellant-company . The two persons who had allegedly received the said letters, left the appellant-company s service on 1st July, 2000. The appellant-company s seals appearing on copies of those letters, were either manufactured and used unauthorisedly or used unauthorisedly. Paymen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... because of the following reasons. 9. The statement of accounts, on which the respondent had founded his claim, was on the face of it not correct. The amount of Rs. 6,55,473.47 shown in the statement enclosed with the respondent s letter dated 21st May, 1997 as brought forward bill amount, was a fictitious amount. In the pleading nothing was mentioned as to how the said sum of Rs. 6,55,473.47 had been brought-forward. The said sum was the foundation of the whole statement of accounts; therefore, minus that unexplained amount, the entire edifice of the statement of accounts was bound to crumble. The accounts were highly disputed, and on the basis of unreliable accounts the said company petition should not have been admitted. The appellant-company had never confirmed Camellia s alleged debt. the claim of assignment was baseless, as the manner in which the alleged assignment had been made, was not a lawful manner. The learned Judge did not consider the aspect of alleged assignment at all. There was no evidence that the accounts had been confirmed by the appellant-company. Bills had not been received, and this aspect was also not considered by the learned Judge. Although a sum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 70 Comp. Cas. 262 (Cal.)." 12. On behalf of the appellant-company, in reply, it has been submitted that minus the disputed four letters the respondent had no case; and the appellant-company was not obliged to disclose all its points of defence in reply to statutory notice. It has been submitted that if a debtor company is held to be under an obligation to disclose all the points of defence in reply to the statutory notice, then the requirement of filing an affidavit-in-opposition to a company petition filed by a creditor for winding up would have been dispensed with. 13. After hearing the parties and considering the materials on record we find that, on the facts and in the circumstances of the case the learned Company Judge was perfectly justified in arriving at the conclusions that the debt was not bona fide disputed by the appellant-company; and the defence taken by it was not a substantial one, and rather, it was a moonshine defence. 14. We are of the view that the defence taken by the appellant-company in reply to the respondent s statutory notice should be the guiding factor for considering the question : whether the defence taken by the appellant-company in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned Company Judge. This being the position, it is manifest that the entire defence taken by the appellant-company in its reply to the statutory notice was admittedly a sham and moonshine defence. It will, therefore, be deemed that the appellant-company refused and neglected to pay the respondent s claimed amount, because it was unable to pay the said debt. 18. In the opposition to the said company petition the main defence that was taken by the appellant-company was : the amount of debt as mentioned by the respondent was not correct. The appellant-company disputed the statement of accounts and contended that the exact amount of debt was yet to quantified precisely. 19. We find that the law in regard to such a defence has already been laid down by the Supreme Court in the case of Madhusudan Gordhandas Co. v. Madhu Woollen Industries (P.) Ltd. AIR 1971 SC 2600. It was held, by the Apex Court, in that case; where there is no doubt that the company owes the creditor a debt entitling him to a winding up order, but the exact amount of the debt is disputed, the court will make a winding up order without requiring the creditor to quantify the debt precisely. 20. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt-company. There was not question of determining the liability through any process. The liability was, almost in its entirely, admitted by the appellant-company by not disputing the correctness of the claims made by the respondent in his statutory notice; and by trying to avoid payment by raising a sham and fictitious defence. 25. In the facts and circumstances of this case we do not find any of the decisions cited by the learned counsel for the appellant to be of any help the appellant-company s case. 26. On the question of assignment of Camellia s debt amounting to Rs. 1,36,027.36 : we find that there is no evidence to show that the debt was accepted by the appellant-company. It has been contended by the learned counsel for the appellant-company that in terms of provisions of the Transfer of Property Act, 1882 the benefit of contract is only assignable, the burden thereof is not. For this purpose a passage from Mulla on the Transfer of Property Act, (9th edition, p. 1335) has been relied on. He submitted that Camellia s alleged debt could not be the appellant-company s debt by assignment. It appears, this plea was not at all considered by the learned Company Judge. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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