At, High Court of Judicature at Allahabad
By, THE HONOURABLE MR. JUSTICE SUNIL AMBWANI & THE HONOURABLE MR. JUSTICE J. CHELAMESWAR
For the Appearing Parties: R.P. Agrawal, Shashi Nandan, Advocates.
SUNIL AMBWANI, J.
(1) IN pursuance of the notice issued by this Court on 18-7-2000, the respondent-company has filed a counter affidavit of Shri Ashok Mitra on 4-4-2001. A rejoinder affidavit of Shri Onkar agarwal was filed on 12-4-2001. A supplementary counter-affidavit has also been filed. On 10-7-2001, the respondent-company was granted opportunity of filing the accounts of the applicant-company, maintained with the respondent-company as well as the last audited balance sheet. The matter was listed again on 26-7-2001 and further time was granted to comply with the order.
(2) TODAY the matter was taken up in revised list. No one appears for the respondent-company. I have heard Shri R. P. Agarwal. G. B. Marketing Corpn. is partnership working as C and P agent and dealer of the respondent-company for marketing its products. A security of Rs. 10 lakhs was deposited bearing 15 per cent interest by the applicant for the respondent-company. It is alleged that the agency was discontinued and on the date of its engagement a sum of Rs. 28,82,906. 82 was the balance to be paid to the applicant-company. It has further been alleged in para 13 of the petition that respondent-company at no stage disputed this liability and that in fact the liability was acknowledged on the confirmation of account on 24-3-1999, and thereafter on 14-12-1999, a request was made by the respondent-company that due to certain constrains they are unable to make the payment at that time with the assurance that the demand draft shall be sent against outstanding balance on 27-1-2000 and in case the respondent-company is unable to send the demand draft an account payee, cheque shall be sent. Thereafter a cheque of Rs. 55,000 dated 22-3-2000 was sent as part payment drawn in favour of Benaras State Bank Ltd. Another cheque dated 31-3-2000 of Rs. 1 lakh was drawn on the Central Bank of India, Muthiganj, Allahabad. Both the cheques returned unpaid by the bank with the remarks 'payment stopped by the drawer'. A third cheque for Rs. 161akhs was also issued but could not be realised on account of stop payment. Statutory notice under Section 434 was sent to which no reply was received.
(3) IN the counter-affidavit, the respondent company has also taken a stand that the accounts between the applicant-company and the respondent-company have not been reconciled. They disputed the liability of interest and have made a statement that the claims of the applicant-company are highly excessive as substantial amount has to be recovered after reconciling the account. It has also been alleged that the respondent-company has to recover about Rs. 4 lakhs towards the purchase of car and some other amounts are also to be paid.
(4) THE court finds that the defence is not only vague but has been put up without substantiating it by the company accounts of the applicant, maintained by the respondent-company. On the facts of the case, the court is not satisfied that the defence is bona fide,
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and thus prima facie, it appears that the company is deliberately avoiding, and that it is unable to pay its dues. (5) IN the aforesaid circumstances, it is directed that the advertisement in accordance with Section 24 of the Companies (Court) Rules, 1959, be published fixing a date for hearing of this company petition.