TMI Blog2005 (1) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... also claimed damages for non-supply amounting to Rs. 10,50,525. 2. Statutory notice of demand although received by the company was not replied. 3. The winding up petition was contested by the company by filing affidavit. In the affidavit-in-opposition the company not only denied several reminders annexed to the petition but also denied receipt of the statutory notice of demand although xerox copy of the acknowledgement due card was annexed to the winding up petition. The learned counsel appearing for the company on instruction contended that the signature appearing therein was not of any authorized representative of the company. 4. Let me first examine the petitioner s case. 5. Petitioner annexed invoices, delivery challans which are all admitted documents. The petitioner also annexed several letters of reminder receipt of which was appearing on each of the documents although the company disputed those signatures as well as the rubber stamp. The statutory notice of demand was sent by registered post with acknowledgement due card. The acknowledgement due card was duly received back by the advocate-on-record for the petitioner which would show that somebody on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforesaid delivery was effected by you I would have availed 15 per cent discount as per arrangement. Since you do not wish to effect delivery I claim damages on account of loss suffered for not being able to avail the 15 per cent discount which works out to Rs. 10,50,525.00. By your act, I do not wish to maintain any further business relationship with you. You are also requested to refund the balance sum of Rs. 4,69,542 lying in your credit account of 15 per cent discount as discussed with you. In the event you wish to obtain any clarification, you may contact me after my return a month later." 9. Relying on these two documents the Director of the company filed the said affidavit and verified the same to be true to his knowledge. In paragraph 4 the signature appearing in the acknowledgement due card was denied, so was the service of notice. In paragraph 8 of the petitioner contended : "The petitioner herein is now with its mala fide intent in order to gain certain additional benefits is trying to claim a sum of Rs. 42,78,831 without effecting any further delivery of the aforesaid goods to the company." It also stated "I submit it was duly agreed by and between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... company." 11. If one looks to the contents of the letter quoted supra and the first two averments of the affidavit quoted supra it would appear that according to the company they could not avail the discount because of short supply and as such the company suffered loss to the extent of Rs. 10.5 lakhs. According to the company the order was placed valued at more than Rs. 3 crores. If the company supplied the last consignment of 500 numbers of cylinders that would result in an aggregate value of supply more than Rs. 3 crores. If we compare these averments with the averment quoted supra being a part of paragraph 12 it would appear that the company claimed benefit of discount at the rate of 15 per cent by taking into account a sale amounting to Rs. 3,16,55,820 apart from a damage for Rs. 10,50,525 . If that be the situation then it is not clear from the affidavit as to what was the actual stand of the company. In one hand the company says that the supply was less and as such payment was less which resulted in damages because of failure to avail 15 per cent discount, on the other hand company claimed 15 per cent discount on the basis of a total supply amounting to a sum exceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of cross-claim the party making such cross-claim must come with a definite case that cross-claim is indisputably payable. The company, in my view, miserably failed to do so in the instant case. 15. I am not going into the question as to the disputed correspondence exchanged between the parties. One says the letters of reminder annexed to the petition were not served, the other disputes the letter regarding 15 per cent discount. If I go into this question that would invite an issue that might warrant regular trial. However, I find that without going into that question the principal issued can be resolved. 16. The last legal argument made on behalf of the company was that since no statutory notice was served upon the company, the winding up petition was not maintainable. When a notice had been sent under registered post with acknowledgement due card through the postal department being a limb of the State and the acknowledgement due card duly came back it should be presumed that the notice was served unless it was proved to the contrary. The petitioner discharged is onus by annexing the photocopy of the acknowledgement due card wherein stamps of two post offices are appearin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
