9911796707
TMI Blog2012 (6) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... ies, assets, incomes and also business of the company with all powers under the Companies Act, 1956, including the power to take charge of the assets, records, documents, papers, vouchers, bills, etc., of the company. 2. The petitioner-company also prayed that the respondent be restrained from transferring or alienating properties in any manner. The petition is taken out on the ground that the petitioner supplied various goods/materials to the respondent and had raised invoices in respect of goods supplied. It is also claimed that from time to time goods were supplied by the petitioner and the invoices raised in respect of such supply have remained unpaid though part payment out of the total amount covered under invoices is received. It is claimed that the invoice in a sum of Rs. 11,49,787 were raised. The respondent made payment to the tune of Rs. 2,32,753 and thereafter stopped making any payment and the other invoice remained unpaid. It is also claimed that when, despite repeated request any response was not received and any payment was also not received, the petitioner was constrained to issue, deliver and serve the demand by way of statutory notice under section 433 read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties have arrived at the settlement however, fine tuning to the terms and conditions of the respondent to be settled between the parties and therefore, time was requested. Ultimately on August 24, 2011, it was submitted by learned advocate for the respondent that the parties have already arrived at the settlement and duly signed consent terms will be placed on record on August 30, 2011. On such submission, proceedings of the petition was adjourned to August 30, 2011. Subsequently on August 30 and September 8, again request for adjournment for placing the consent terms on record was made and was granted. 8. Obviously if there was no claim for considering and if the claim was absolutely baseless unjustified and was made in connection with the goods/material which was never intended and was not supplied, any question of negotiation and/or settlement much less tendering consent terms on record would never arise. 9. In this background today learned advocate for the respondent submitted that the respondent-company is not inclined to sign any consent terms and submitted that after hearing the submissions to be made by the respondent appropriate order may be passed therefore, I have h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent-company has neglected to make payment. She also submitted that the respondent does not have the ability to make payment and that therefore, the petition deserves to be admitted and the petitioner-company is entitled to pray for order of winding up against the respondent-company. 14. Ms. Sheth, the learned advocate for the respondent opposed the petition and submitted that claim against the respondent is baseless. She submitted that there is no material on record to show that the respondent issued or forwarded any purchase order for any goods/materials particularly goods allegedly supplied by the petitioner in respect of the claim which is made. She reiterated the below mentioned submissions and factual details mentioned by the respondent-company in paragraph 5 of its reply affidavit : "5. In reply to averments made in paragraphs 1 to 8 of the petition it is submitted that the company does the business with the petitioner since few years and always paid the amount as and when the order has been placed and purchased the material from the petitioner. However with respect to the material claimed to be supplied to their company amounting to Rs. 11,49,787 it is denied that the com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the delivery notes duly acknowledged by the respondent-company are annexed herewith as annexure B." 20. As noted above in the reply affidavit the respondent-company has stated that the petitioner has conveniently not given details about placing of the oral order by the respondent-company and has not given details about the orders and on which dates the orders were passed and/or for which material orders were placed. The respondent has also stated that the petitioner has not bothered to give details on which date the supply were made. 21. However, it is pertinent to note that in paragraph 5 of the reply affidavit which pertain to paragraphs 1 to 8 of the petition there is no denial about the petitioner's assertion in respect of delivery notes. 22. On perusal of the document at annexure B pages 15 to 17 it transpires that details of the description of the goods/materials supplied by the petitioner to the consignee are mentioned in the name of the respondent-company is shown as consignor and the said delivery notes are said to have been signed in acknowledgment of the receipt-delivery of the goods by the representative of the respondent-company. 23. The said document and/or asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke payment and/or to deposit the amount is concerned as noted hereinabove earlier several opportunities were granted by adjourning the petition and at one stage it was mentioned by the respondent that the parties have arrived at the settlement and the consent terms were also drawn which were only to be signed and presented on the record. 34. However now the respondent has referred to contest the petition on merits. Under the circumstances as such I do not see any reason or justification to defer the publication of advertisement. 35. Learned advocate for the petitioner has also expressed serious apprehension that if restraint order is not granted then the asset may be transferred/lost. 36. Having regard to the aforesaid fact that on earlier occasion the petition was adjourned from time to time to enable the respondent to arrive at a settlement at the request of the respondent on a couple of occasions, the hearing was adjourned only with a view to accommodating the respondent to sign the consent terms and having regard to the fact that even as of now the respondent-company has not shown any inclination or readiness to offer payment even in instalment or to deposit the amount it ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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