TaxTMI 
TaxTMI 
2016 (12) TMI 1360
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....of various equipments and computer peripherals. Various purchase orders were placed by the respondent company for supply of goods manufactured by the petitioner company, pursuant to which supplies were made and received by the respondent company under an open credit arrangement. It appears that consideration for computer peripherals having supplied not having been received for over two years the petitioner company vide notice dated 21- 4-2010 required the respondent company to pay the outstanding due amount Rs. 1,00,54,187.24 (Rs.One crore fifty four thousand one hundred eighty seven and twenty four paise), which was due. A list of invoices under which supplies were made between 13-12-2007 and 4-6-2010 was annexed to the notice. No response emanating to the aforesaid notice, a statutory notice under Section 433(1)(a) of the Act of 1956 was issued on 4-5-2010 by the petitioner company reiterating that the amounts due for supply of computer peripherals under an open credit arrangement aggregated to Rs. 1,00,54,187.24 with reference to goods supplied under invoices raised between 13-12-2007 and 4-6-2010 as reflected in Annexure-A to the aforesaid notice. It was stated that the due and....
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.... dated 20-6-2009 for Rs. 1,99,800/- to the petitioner company but the said payment has not been accounted for in the petitioner company's allegedly outstanding amount. It was further submitted that the petitioner company in terms of a verbal agreement was under an obligation to provide customer services subsequent to supply of computers to the respondent company, but failed to do so due to which the respondent company suffered extra financial burden in serving the end users of the computers supplied and resultant dilution of market reputation for not rendering requisite after sales service to the customers. It was submitted that during the period of three years of relationship between the petitioner company and respondent company supplies of about Rs. 7.5 crore were made i.e. Rs. 2.5 crores every year. In terms of the arrangement/ agreement between the petitioner company and the respondent company 10% of the turn over was to be committed towards services rendered to the end use customers. The petitioner company is alleged to have failed to honour its commitment on this count. It was submitted that the petitioner company also owes, under purchase order AO-330 DT computer valuing....
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....2010 and goods supplied thereunder. It was further submitted that the petitioner company was not under any obligation to provide customer service nor it was under an obligation to provide 10% commission to the respondent company for the said purpose. It was further submitted that the desperate defence of the respondent company is evident from its claim to an unspecified amount of commission for the supplies to a third party. No such agreement was even entered into between the petitioner and respondent companies. It was submitted that the goods supplied in the course of business relationship when required to be exchanged were replaced at the relevant time. Nothing on record proves to the contrary. With regard to alleged nonpayment for a computer supplied to one Siddarth Raqval, it was submitted that the said transaction was unrelated to the petitioner company as evident from the annexure-5 dated 18-4-2009 relied upon by the respondent company itself. Counsel for the petitioner company and the respondent company have reiterated the submissions made in the winding up petition, reply thereto and the following rejoinder. While Ms.Sonal Singh counsel for the petitioner company emphasise....
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....voices for which the due outstanding amount has been claimed by the petitioner company in its statutory notice under Section 434(1)(b) of the Act of 1956 and in this winding up petition. There was admittedly a business relationship between the petitioner and the respondent companies for over three years to a tune of Rs. 7.5 crores turnover and about Rs. 6.5 crore was indeed paid by the respondent company. The winding up petition has been filed only for Rs. 1,00,54,187.24. The defence based on commission due (non specified) for supply of computers/ equipments to Modi Institute of Technology and Science and price of a computer supplied to one Siddarth Raval are ludicrous if not pathetic. The reply to the statutory notice under Section 434(1)(a) of the Act of 1956 on behalf of the respondent company effectively admits large parts of amounts due. In the facts of the case, I am of the view that the defence to the winding up petition is not based on a bonafide dispute substantial or otherwise. It appears to be meritless. The Hon'ble Apex Court in the case of Vijay Industries Vs. NATL Technologies Limited [(2009)2 SCC 527] has held that following considerations to be kept in mind by ....