Full Judgment
Such notice was addressed at both the registered office of the company as well as at the administrative office and was received thereat. In spite of receipt, no reply has been given to the statutory notice.
Therefore, the inability to pay of the company is evident. In fact, part payments have been made after supply of goods to the sum of Rs.1,71,526.68. There is no contemporaneous document to evidence any dispute raised in respect of the goods supplied.
Therefore, the goods have not only been received but also utilized by the company without demur. This, therefore, entitles the petitioner to the order sought. Counsel for the company submits that pursuant to orders passed by the Company Law Board on 13th March, 2006, the control and management of the company has come to be vested in the O.P.Tantia Group.
Prior to the said order the said company was under the control and management of A.K.Tantia Group and the said claim is based on fictitious entries as the petitioner is only a supplier of rubber goods and could not have, therefore, supplied CO2 wires.
The rubber goods supplied are critical in nature and required by the Indian Railways. The petitioner not being an authorized or approved vendor of the railways could not have supplied the said goods. Therefore, it can only be assumed that the bills raised are in collusion with the A.K.Tantia Group.
The accounts of the said period, in fact, is under scrutiny as auditors have been appointed to scrutinise the same by order dated 31st August, 2010. Reliance is placed on (2005) 7 SCC 42 for the proposition that the company court is not a debt collecting court and as a bona fide dispute has been raised no order be passed on this application. However, the company is willing to secure the petitioner to the extent of Rs.3,61,815/- which sum excludes the price of CO2 wires.
Having considered the submissions of the parties, the claim of the petitioner is based on price of goods sold and delivered. Admittedly such orders were placed and supply made during the period when the A.K.Tantia Group was in control and management of the company.
In fact, part payments have also been made. There is no contemporaneous document to evidence any dispute that may have been raised in respect of the said goods by the A.K.Tantia Group. Even assuming that A.K.Tantia Group acted in collusion with the petitioner the notice under sections 433 and 434 of the 1956 Act was issued on 24th May, 2008 that is nearly two years after the order passed on 13th March, 2006. No reply has been given to such notice either in 2008 or prior to the filing of this application.
In fact, part payments have been made by the earlier management. To go into the question which has been raised now by the O.P.Tantia Group would be contrary to the conduct of the A.K.Tantia Group who had at no point of time raised any dispute. Accordingly, the company is directed to make payment of the sum of Rs.5,30,815/- along with interest at 12% per annum by 28th September, 2010. In default of payment of the said sum advertisements be issued once in The Telegraph and once in the Sanmarg within three weeks from the date of default. Matter to appear two weeks after publication of advertisements.
This order is passed as the affidavit-in-opposition has been filed by the O.P.Tantia Group and the A.K.Tantia Group has not come forward to dispute the claim of the petitioner.
As the accounts between the A.K.Tantia Group and O.P.Tantia Group is under scrutiny, even if it is found that the said realisation are against fictitious entries the company under the O.P.Tantia Group will be entitled to be reimbursed by the A.K.Tantia Group.
All parties concerned are to act on a Photostat signed copy of this order on the usual undertakings.