V.K. JHANJI, J.
1. This company petition under Section 439 read with Sections 433 and 434 of the Companies Act, 1956, has been filed for winding up of the respondent-company, namely, Unicoat Tapes Private Limited.
2. The respondent is a public limited company incorporated under the Companies Act, 1956, and is engaged in the business of manufacturing and marketing of BOPP films, etc. It is the case of the petitioner that the company has been doing business with the respondent-company and it supplied to the respondent various quantities of BOPP films pursuant to its orders. The details of the supplies made under various invoices are as under :
Date Amount dues Invoic Rs. P.
l. e No.
4-2-1992 1,51,115. 77 1.
1/1062 0 4-2-1992 1,09,346. 69 2.
1/1062 1 13-2-1992 1,43,775. 49
1/1066 2 20-3-1992 2,65,943. 00
1/1074 4 26-3-1992 1,41,386. 08
1/1077 3 1,29,529. 17
1/2000 15-04-19926 30-9-1992 42,504. 00
1/2026 0 1,08,262. 00
1/2028 20-10-19924 10,91,862. 20 3. The petitioner allowed discount on the invoice price and after making the due adjustments, a total amount of Rs. 9,26,341 is due and payable by the respondent-company. The respondent-company issued cheques against the price of the goods, which on presentation for payment with the bank were dishonoured and returned unpaid with the remarks "refer to drawer". The copies of the cheques have been attached with the petition and marked as annexures P-9 to P-12. It is the case of the petitioner that from time to time, it sent reminders to the respondent-company requesting it to make payments in respect of the supplies of the goods by the petitioner, but to no avail. Notice dated August 18, 1993, under Section 434 of the Companies Act, 1956, calling upon the respondent-company to pay a sum of Rs. 9,26,341 along with interest at the rate of 24 per cent, per annum, was served, but despite the service of said notice the respondent-company failed to pay the amount due. It has thus been averred in the petition that the respondent-company is liable to pay Rs. 13,02,993. 78 being the price of the goods, along with interest as on July 31, 1994, and the respondent-company having shown its inability to make the payment is liable to be wound up.
4. On notice of the petition, the respondent-company in its written statement has submitted that material supplied by the petitioner-company in the month of December, 1991/january, 1992, was not found to be of gradation which had been agreed to between the parties.
5. The petitioner-company was asked to replace the material, but it failed to do so. It has also been submitted that the respondent-company pointed out the discrepancy of weight and the rate which had been charged in respect of bill dated September 23, 1991, but no credit note for the difference in the bill was sent. In regard to dishonouring of the cheques by the bank, it has been submitted by the respondent that the petitioner-company had obtained post-dated cheques for the material to be supplied to the respondent-company and those cheques could not have been sent for encashment as the material supplied against the said cheques stood rejected. The respondent-company has submitted that the petitioner company with mala fide intention presented these cheques without intimating to the respondent-company and has projected as if the company has failed to make the payment and the cheques were not honoured; whereas the fact of the matter is that the material stood rejected. The respondent has denied the service of notice under Section 4. 34 of the Companies Act, 1956. In order to rebut the pleas raised in the written statement, the petitioner-company in its replication has denied the averments made in the written statement and reiterated the case set up by it in the petition.
6. After hearing learned counsel for the parties and going through the petition, 1 am of the view that the defence set up by the respondent-company is not a bona fide one. The dispute in this case relates to the payment of goods supplied to the respondent-company, vide eight bills, annexures P-1 to P-8, for various amounts starting from February 4, 1992, to October 20, 1992.
In all the letters of the respondent-company, namely annexures R-1 to R-11, there is no reference in regard to any dispute regarding bills, annexures P-l to P-8. Counsel for the respondent has made reference to letter dated January 8, 1992 (annexure R-1), which obviously pertains to the period before annexure P-1, dated February 4, 1992. In letter dated January 15, 1992 (annexure R-2), again reference is made to bills previous to the issuance of bill, annexure P-1. Similarly, annexure R-3, refers to letter dated January 8, 1992, which in turn refers to earlier bills. Similar is the position in regard to letters, annexures R-4 to R-6. It is pertinent to mention here that in letter dated June 14, 1992 (annexure R-7), the respondent-company itself has admitted that goods weighing 620. 6 Kgs. were rejected, and credit of the defective goods was given to the respondent-company. Similarly, in letter dated July 24, 1992, the petitioner-company offered to take back all the unused film but the respondent-company had not agreed to the said offer. The respondent-company had also been informed by this letter that the petitioner-company would not accept any rejections due to printing treatment or cutting distortions. The other annexures produced by the respondent-company pertain to rejection of films on the grounds other than the manufacturing defects. In case the respondent-company itself had failed to apply proper gumming or the printing was defective, then the petitioner-company cannot be blamed because gumming or printing was not done by the petitioner-company, but by the respondent-company.
Likewise, in letter dated April 15, 1993, received from one of its customers, namely Dabur, the reason given for rejection of film is due to printing defects, shade defects and two other defects, which cannot be attributed to the petitioner. So much so, from letter dated April 15, 1993. It cannot be ascertained whether the films sent to Dabur were supplied by the petitioner-company.
The same is the position regarding rejection of the material by Dabur by its letter dated March 9, 1993.
7. A perusal of the statement of account, annexure P-15, also shows that till January 25, 1992, there was no dispute regarding the quality of film except that the payments were not made by the respondent-company. The goods were sent under bills, annexures P-1 and P-2 on February 4, 1992, and, vide annexure P-3 on February 13, 1992. Payment of Rs. 1 lakh, was made on February 13, 1992. Subsequently, the goods were sent on February 20, 1992 and February 26, 1992 (annexures P-4 and P-5). Another payment was made on March 30, 1992, for Rs. 1 lakh.
Cheques for Rs. 81,299. 13 were given on January 18, 1992, but the same were dishonoured and therefore, this amount was reversed on January 31, 1992. Subsequently, payment of Rs. l lakh made on February 28, 1992, through cheque had to be reversed for non-encashment of the cheques. The statement of account further shows that the petitioner-company had given a credit note of Rs. 25,101. 13 to the respondent regarding damage to goods and a special discount was given for Rs. 1,80,433. 62 on March 31, 1992, as according to the petitioner-company the prices had dropped in the market. Subsequent payments were made on May 1, 1992, June 1, 1992, June 4, 1992, July 2, 1992, and September 10, 1992, totalling Rs. 3 lakhs. Thereafter, the goods were sent on September 30, 1992 (annexure P-7), and October 30, 1992 (annexure P-8). Two cheques were issued for Rs. 18,031 and Rs, 1,27,920 but both the cheques were dishonoured. In case there was any dispute with regard to quality of goods, the respondent-company would not have placed any further order for supply of goods or would not have made payments on various dates between February and October, 1992. It is also to be noticed that before filing of the petition, registered notice was sent by the petitioner-company through its advocate and
Please Login To View The Full Judgment!
in case there was any dispute, respondent-company had the opportunity to explain the same in its reply. Instead of explaining as to why the notice was not replied to, the respondent-company has simply denied the receipt of the same. In my view, the circumstances of this case, as discussed above, clearly point out that the defence set up by the respondent-company is not a bona fide one and has been set up only in order to deny payment due to the petitioner-company. Thus, it is clear that the respondent-company has failed to make payment of the amount due from it to the petitioner-company and, therefore, it is held that the respondent-company is unable to pay its debts. 8. For the foregoing reasons, this petition is admitted and ordered to be published at least 14 days prior to the date of hearing in the Indian Express, Jansatta (Hindi) and the Haryana Government Gazette. 9. To come up for further proceedings.