Judgment:
ORDER
SHEET APO NO.307 OF 201.ACO NO.113 OF 201.CP NO.341 OF 200.IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE KOHINOOR TEA Co.LTD.Versus RAJESH RAJORIA BEFORE: The Hon'ble JUSTICE ASHIM KUMAR BANERJEE The Hon'ble JUSTICE SHUKLA KABIR (SINHA) Date :
4. h July, 2012.
Mr.Aniruddha Ray, Adv., Mr.Ratnesh Kumar Rai, Adv., Mr.A.Basu, Adv., for the appellant.
Mr.Jishnu Saha, Adv., Mr.Susanta Dutta, Avd., Mr.M.Sarkar, Adv., for the respondent.
The Court : The appellant entrusted the respondent for supply of coal.
Rs.8,60,436/- The became respondent due and claims payable.
The that a company sum of issued several cheques amounting to Rs.1.65 lakh in part satisfaction of their dues.
Those cheques were dishonoured for non-payment.
The respondent issued notice under Section 138 of the Negotiation Instrument Act.
The learned Advocate for the appellant wrote to them by sending pay orders for the like amount that was received by Rajesh Rajoria, the respondent personally as we find from the page 100 of the paper book.
demand for The the respondent balance sum issued of a statutory Rs.6,95,436.80 notice which of the appellant company failed and neglected to pay giving rise to the winding up petition at the instance of the respondent.
The appellant replied to the statutory notice denying the claim.
The supply is admitted.
The appellant, however, claims that the there outstanding could consistent in be no their was settled enforceable at Rs.1.65 claim.
lakh, They affidavit-in-opposition.
were They hence, also enclosed documents particularly pages 93, 99 and 100 showing receipt.
Page 93 is a letter sought to be written by the company making complaint with regard to inferior quality of supply that was received by one Rajesh Agarwal.
Page 99 is a letter dated January 22, 2008 enclosing cheques aggregating to Rs.1.65 lakh sought to have been received by Rajesh Rajoria.
Page 100 was sent as a reply to the notice of demand under Section 138 of the Negotiable and Instrument Act.
Rajesh Rajoria purportedly received it.
The learned Judge initially gave direction for inspection of the originals as the respondent disputed his signatures appearing in the documents itself referred to above.
From the inspection note it appears that the appellant could not produce the originals of those documents sought to be disputed by the respondent.
The learned Judge admitted the winding up petition and in our view, very rightly.
His Lordship was of the view that the defence was set up on the strength of the fabricated documents.
Hence, this appeal by the appellant.
We have appellant heard company.
Mr.Aniruddha We have Ray also appearing heard for Mr.Jishnu the Saha appearing for the respondent being assisted by Mr.Susanta Dutta.
Mr.Ray in his usual fairness admits that he could not produce the originals for inspection.
He contends that the company is in a bad shape as the persons in management and control are indisposed.
The erstwhile management is also not co-operating with the present management.
Hence, the difficulty in production of the originals.
He, however, does not explain how they could get hold of the photostat copies of the documents at the time of preparation of the affidavitin-opposition.
Even if we give credence to those three documents we would find that page 100 was a reply to the notice under Section 138 of the Negotiable and Instrument Act.
It is common knowledge of everyone that a notice under the said Act could only be issued in respect of the value of the dishonoured cheques and nothing else.
From the receipt we find that the respondent received the draft for Rs.1.65 lakh.
It was not in full satisfaction of his claim.
From the reply of the learned Advocate we find that the draft was issued in exchange of the dishonoured cheques issued towards ‘satisfaction of your dues on account of supplying coal to the Kohinoor Tea Company Limited’.
It was never contemplated that the said sum would take care of the entire dues of the respondent.
That would leave us with pages 93 and 99.
Page 93 was a letter making a complaint with regard to the quality of the coal that was received by one Rajesh Agarwal.
We do not find his relationship with either of the parties.
Even if we give full credence we would find a complaint being lodged by the company to the respondent.
It does not speak of settlement of claim on that count.
Page 99 would obviously speak of settlement of the entire claim as on that date.
The company claims that it was received by the respondent himself.
The company is, however, unable to produce the original for inspection.
Mr.Ray raised veracity by of strenuously the the contends petitioning signatures that creditor that when with would a dispute regard itself to amount is the to dispute which should stand to trial and winding up petition is not the lawful remedy for the same.
Moreover, the company has already shown its bona fide by securing the claim to the extent of Rs.7.5 lakh in terms of the order of the Division Bench.
This Court should allow the appeal and relegate the parties to suit.
With deepest regard we have for Mr.Ray, we are unable to be ad idem.
It might be so that the company is a solvent company.
It might be so, despite their financial stringency, they could master financial resource to secure the claim of the petitioning creditor that would be of little relevance herein.
A company deliberately fails and neglects to pay the just claim of the petitioning creditor that would warrant an order of admission.
The company, in effect, could resist the claim through page 99 which they are unable to produce.
The learned Judge rightly rejected their defence and admitted the winding up proceeding.
We do not find any scope of interference.
The appeal fails and is hereby dismissed.
There will be no order as to costs.
The company is given two months’ time to pay off the dues.
In case payment is made, they would be at liberty to withdraw Registrar, the bank Original guarantee Side of that was submitted this Court.
In to default the of payment, the respondent would be at liberty to have the said bank guarantee encashed for satisfaction of his dues in terms of the order of the learned single Judge.
Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(ASHIM KUMAR BANERJEE, J.) (SHUKLA KABIR (SINHA).J.) sd/