TMI Blog2018 (10) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... the triable issues, the trial Judge may impose conditions, for payment in Court or furnishing security. Subject to deposit of ₹ 15,92,544/-, together with interest thereon at the rate of 10%, per annum from the date of receipt of the notice under Section 434 of the Act of 1956 by the company with the Registrar, Original Side of this Court, within October 10, 2018, the present winding up application shall stand permanently stayed and the petitioner shall file a suit against the company, before the competent Civil Court for realisation of its dues. In the default of deposit of the aforementioned amount by the company with the Registrar, Original Side of this Court within the time stipulated above the present winding up application shall stand admitted for ₹ 15,92,544/-, together with interest thereon at the rate of 10%, per annum from the date of receipt of the notice under Section 434 of the Act of 1956. In that event the petitioner shall cause publication of the notice of the winding up application against the company once in the Bengali newspaper, ‘Bartaman’ and once in the English newspaper, ‘The Statesman’. In the said notices the petitioner shall also mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate of 18% per annum on the outstanding amounts. On October 5, 2012 the company paid ₹ 9, 63,895/- to the petitioner on account of the invoice dated July 6, 2012. According to the petitioner, by two cheques dated June 14, 2013 and July 30, 2013 the company also paid ₹ 4,00,000/- and ₹ 3,89,806/- amounting to ₹ 7,89,806/- towards the second invoice dated August 24, 2012. Thereafter, on July 24, 2013 the company made part payment of ₹ 5, 00,000/- by RTGS in respect of the invoices dated October 14, 2012, November 5, 2012 and November 23, 2012. The petitioner claims that after giving credit of all the said payments made by the company, ₹ 15, 92,544/- still remains due and payable by the company, together with agreed rate of interest thereon at the rate of 18 % per annum. The company, however, failed to pay the said outstanding dues of the petitioner. Thus, on August 14, 2015 the petitioner through its Advocate issued a notice under Section 434 of the Act of 1956, calling upon the company to make payment of the said outstanding amount of ₹ 15, 92,544/- within 21 days from the date of receipt of the same. By its reply letter dated September 7, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegations of the company in the said letter dated September 7, 2015 and alleged that the letters dated September 5, 2012, October 26, 2012, November 26, 2012, December 10, 2012, June 13, 2013, July 27, 2013 and November 12, 2013 attached to the said reply dated September 7, 2015 are manufactured and concocted. The petitioner alleged neither of the said purported letters was delivered to him and none of his representative gave any acknowledgment to such purported letters. Since the company did not make payment of the said sum of ₹ 15, 92,544/- the petitioner filed the present winding up application against it. The company has contested this application by filing its affidavit-in-opposition alleging that the goods supplied by the petitioner covered by the said invoice dated July 6, 2012 were in order and accordingly, it paid the entire invoice amount of ₹ 9, 63,895 to the petitioner. It is, however, alleged that since the goods supplied by the petitioner covered by the invoice dated August 24, 2012 were of inferior quality by a letter dated September 1, 2012 the company requested the petitioner to immediately replace the same with upgraded quality. In its affidavit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith regard to the particulars of the invoices raised by the petitioner on the company on account of supply of the said goods. He further submitted that even the receipt of the said five invoices for a sum of ₹ 43, 46,245 as mentioned in Schedule B to the winding up application is not in dispute. It was contended that the company has not disputed either the rate of the said goods or the quantity of the said goods mentioned in each of the said five invoices . Even the company could not dispute the particulars of payment of ₹ 17, 89,806. It was submitted by the petitioner that admittedly out of the total invoice amount of Rs, 43,46,245 the company has made payment of ₹ 17, 89, 806.00 to the petitioner. According to the company, since the said goods supplied by the petitioner covered by the tax invoice dated July 6, 2012 were in order the company paid the entire invoice amount of ₹ 9, 63,895 to the petitioner. Mr. Mitra strenuously urged that in the instant case there is no merit in the defence put up by the company to the claim of the petitioner for the balance outstanding price of the said goods of ₹ 15, 92,544/- on the ground that the said goods suppl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013, July 27, 2013 and November 12, 2013 issued by the company to the petitioner bears the seal of the firm of petitioner as well as the signatures of his authorised representative. Relying on the decision of the Supreme Court in the case of Thiruvengadam Pillai -vs- Navaneethammal and ors, reported in (2008) 4 SCC 530. Mr. Chowdhury submitted that it is well settled that a party cannot prove the negative and the company cannot substantiate that either the seals or the signatures appearing on the said letters dated September 01, 2012, October 20, 2012, November 26, 2012, December 10, 2012, June 13, 2013, July 27, 2013 and November 12, 2013 issued by the company are not those of the firm of the petitioner or of his authorized representative. It was argued for the company that in the present case it has raised a bona fide dispute to the claim of the petitioner for ₹ 15, 92,544/- and the winding up application is liable to be rejected. In support of the said contention Mr. Chowdhury relied on the deccision of the Supreme Court in the case of IDBI Trusteeship Services Ltd. vs. Habtown Ltd. reported in (2017) 1 SCC 568 and pressed for dismissal of the winding up application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for ₹ 4, 72,371/-. Thereafter, the company placed further order upon the petitioner for supply of the said goods and the latter supplied further quantity of the said goods to the former covered by the said invoice no. HSC/194 dated November 23, 2012. It was only after receipt of the invoice no. HSC/194 the company issued the alleged letter dated November 26, 2012 to the petitioner complaining that goods covered by both the invoices bearing nos. HSC/181 and HSC/194, respectively were also of inferior quality. The petitioner has claimed that it has not received any of the said alleged letters dated September 01, 2012, October 20, 2012, November 26, 2012, December 10, 2012, June 13, 2013, July 27, 2013 and November 12, 2013. In this connection, it may be noted that when the petitioner did not reply to any of the said alleged letters dated September 01, 2012, October 20, 2012, November 26, 2012, December 10, 2012, June 13, 2013, July 27, 2013 and November 12, 2013 the company paid ₹ 4 lakh to the petitioner in June, 2013. Further, the company has admitted to have used 20% of the said goods supplied by the petitioner and made payment of ₹ 13, 89,806/- to the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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