TMI Blog2010 (7) TMI 773X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods and the time when such defects were rectified. It cannot be said that it is a case of non-payment of admitted liability, petition is dismissed - Co. Petition No. 107 of 2005 - - - Dated:- 12-7-2010 - HEMANT GUPTA, J. Rohit Suri for the Petitioner. V.M. Gupta for the Respondent. JUDGMENT 1. This is a petition for winding up of the respondent-company for its inability to pay alleged admitted amount due to the petitioner. 2. The petitioner is a sole proprietorship firm engaged in the business of importing and reselling uninterrupted power supply units. The respondent is incorporated as a limited company having its registered office within the jurisdiction of this court. The petitioner alleges that the responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by the respondent to send Form E1 to avoid double taxation. However, the petitioner was not paid the amount of the goods supplied although a sum of Rs. 3 lakhs was paid on September 6, 2003. 4. The grievance of the petitioner is that as against the goods of Rs. 18,40,000 supplied and received by the nominee of the respondent, still a sum of Rs. 15,40,000 has not been paid to the petitioner. It is thus alleged that the respondent has failed and neglected to make the payment of the balance amount. A statutory notice under section 434 of the Companies Act, 1956, was served upon the respondent but the respondent in its reply dated April 22, 2005, took up an evasive and invalid defence such as the goods not having been tested and the goods n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the communication dated March 23, 2006, annexure R10 by the Power Grid Corporation addressed to the petitioner wherein the defect in the working of the UPS was pointed out. It was to the following effect : "This is in reference to the UPS installed at Lucknow POP supplied by M/s. Adhunik Power System. This UPS has problem since commissioning. Also it was not working from last eight months. It was repaired in January, 2006 by M/s. Adhunik Power System. Now after repair, this UPS is working satisfactory." 8. Learned counsel for the petitioner has vehemently argued that the respondent accepted the quality of the material supplied by the petitioner which is evident from the issuance of the aforementioned C Form. On issuance of such F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner has vehemently relied upon the supply of form C and the term of the purchase order that 85 per cent of the invoice value shall be paid after 60 days from the date of dispatch but since such payment has not been made, the respondent has failed to discharge contractual obligations but I do not find any merit in such argument. In Ram Kumar's case (supra), the company has not filed a counter affidavit in spite of numerous opportunities granted controverting the supply and receipt of the goods. Such receipt of the goods by the respondents were found corroborated by the issuance of Form ST 15. Whereas in the present case, the respondent has admitted issuance of form C to enable the petitioner to avail of the concessional rate of sales t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
