(1.) THIS petition under Sections 433, 434 and 439 of the Companies Act, 1956 (for short " the Act"), has been filed against the respondent-company for passing a winding-up order. The facts first : The respondent-company, on April 26, 1985, invited tenders for the supply of HPDE bags. The petitioner submitted the tender on April 26, 1985, itself. On October 27, 1985, an agreement was arrived at between the parties for the supply of 1,50,000 HPDE bags. The agreement further stipulated that the respondent-company may have to supply 20% more as per the schedule of delivery. The rate was fixed at Rs. 5. 75 per bag. The respondent-company did not release the delivery schedule for the supply of HPDE bags. However, on the intervention of the then Chief Minister, Punjab, the delivery schedule was released to the petitioner on February 22, 1986, for the supply of 1,00,000 HPDE bags which was duly supplied. The respondent-company cancelled the agreement for the supply of the remaining 50,000 HPDE bags on February 22, 1986. Thereafter, the petitioner again represented to the then Chief Minister, Punjab, and under the directions of the Chief Minister, the Chairman of the respondent-company rescinded the order of cancellation and the petitioner supplied 50,000 HPDE bags. The petitioner supplied 60,000 HPDE bags at Hanumangarh to the respondent-company between September 11, 1986, and September 16, 1986. The petitioner had supplied 20 per cent. additional HPDE bags as provided in the agreement dated October 27, 1985. The payment of sale price was withheld.
(2.) IN the written statement filed by the respondent, it was, inter alia, pleaded that the respondent-company is in a very sound financial condition, it has got enough funds to pay the admitted and due debts and the annual turnover of the company is Rs. 25 crores and it is wholly unjust to say that the respondent-company is unable to pay its debts. The respondent-company accepted the supply of 1,00,000 HPDE bags against payment. The petitioner supplied 60,000 HPDE bags instead of 50,000 HPDE bags at the works of the Corporation at Hanumangarh. At the time of delivery, it was made clear to the petitioner that the supply was not pursuant to the agreement and the rates would be settled subsequently. The petitioner did not approach the Corporation for the settlement of the rates for payment for the supply of extra HPDE bags.
(3.) ON May 27, 1988, learned counsel for the respondent handed over a cheque bearing No. 361467 for Rs. 2,44,166. 64 drawn on the Punjab and Sind Bank, Chandigarh, to learned counsel for the petitioner. The same was accepted pursuant to the order dated May 20, 1988, and the petition was posted for arguments on the limited question "whether direction as to the advertisement of the petition should be given ".
(4.) IT is not disputed that the petitioner had supplied 1,60,000 HPDE bags. In the agreement, annexure P-2, the rate was fixed at Rs. 5. 75 per bag. The total price for 1,60,000 HPDE bags with interest comes to Rs. 3,45,000. The respondent tendered payment for 58976 HPDE bags by working out the price at the rate of Rs. 4. 14 per bag. I fail to understand on what basis this rate has been worked out. There is no dispute about the total supply of HPDE bags and the rate per bag which is Rs. 5. 75. The respondent-company has unjustifiably made short payment.
(5.) UNDER Sub-section (2) of Section 61 of the Sale of Goods Act, 1930, a seller is entitled to interest on the unpaid price of the goods from the date of the tender of goods till the date of payment of the price. Since the full price was not paid by the buyers within a reasonable time from the date of taking delivery, I think it will be just and equitable that the buyer is directed to pay interest at the rate of 9% per annum from the date of delivery of goods till May 27, 1988, on which date the part payment of the principal amount was made in court.
(6.) THE respondent-company has no defence to this petition. The receipt of the material is not disputed. The price for each bag of HPDE is fixed under the agreement. The respondent has unjustifiably made short payment. It has neglected to pay the amount due in spite of repeated demands. This itself is a prima facie evidence of inability to pay. The only defence of the winding-up petition under the provisions of Section 434 read with, Section 439 of the Act is that the debt is bona fide disputed, and the defence is in good faith and is of substance and is likely to succeed in point of law and prima facie proof of the fact on which the defence demand is adduced. The respondent-Corporation has failed to do so.
(7.) UNDER the circumstances of the present case, I direct the respondent-company to make the payment of price of 1,60,000 HPDE bags at the rate of Rs. 5. 75 per b
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ag from the date of delivery which was made between September 11, 1986, to September 16, 1986, along with interest, at the rate of 9% with effect from January 1, 1987, to May 27, 1988, minus the amount of Rs. 2,44,160 64, paid in court within one month from today, failing which the company petition will be advertised as contemplated by Rule 24 of the Companies (Court) Rules, 1959, by an insertion in the daily, "tribune", "punjabi Tribune" and the Union Territory Government Gazette. The case to come up for further orders on May 12, 1989.