Judgment:
1. This appeal is preferred challenging the order passed by the learned Single Judge who has declined to entertain the company petition on the ground that prima facie, he is satisfied that the debt is disputed and it is not certain, and therefore no case for entertaining the Company Petition is made out.
2. The appellant firm is doing business of printing and stationery, graphics materials, paper products. The respondent is a private limited company incorporated under the provisions of the Companies Act, 1956 The case of the appellant is that as per the orders of the respondent's company, they have supplied danglers on various dates total amounting to Rs.4,98,720/-, the details of which are set out in the Company Petition. The said payments had to be made within 60 days. The respondent did not make any payments inspite of several requests and reminders; ultimately, a statutory notice under Section 433 (e) of the Companies Act, 1956 was issued and was duly served on the respondent. They sent a reply denying the liability. Therefore, the appellant was constrained to file a company petition seeking for winding up of the company on the ground that the respondent's company is unable to pay its debts. After service of notice, the respondent entered appearance and filed a detailed statement of objections contesting the claim. Though they admitted the supplies, they denied the supplies as set out in the petition. They also contended that the supplies included defective material and it was not according to their specifications.
3. After hearing both the counsels,, the learned Company Judge was of the view that prima facie there is no material to show that the supplies and invoices were received by the respondent, the amount claimed is not definite and not ascertainable. The respondent company is carrying on business and it is not commercially insolvent. The machinery for winding up cannot be allowed to be utilised merely as a means of realising debts due from a company and therefore, it declined to entertain the petition. Aggrieved by the same, the appellant has preferred this appeal.
4. The appeal is admitted.
5. The learned Counsel appearing for the appellant assailing the impugned order firstly contends that the learned Company Judge has not looked into the letter addressed by the respondent to the appellant's company admitting the debt and requesting time to pay the said amount. Secondly, he contended that in reply to the statutory notice issued, the respondent has admitted a partial amount being due. Under these circumstances, the learned Company Judge is not justified in dismissing the petition.
6. Per contra, the respondent's counsel submitted that even after the Dismissal of the petition, the respondent has paid a sum of Rs.2,50,000/-, the amount admitted to be due in reply to the statutory notice. However, the remaining extent of the claim is disputed. Therefore, the learned Company Judge was justified in dismissing the petition and the said order does not call for any interference.
7. From the material on record, it is clear that there exists a relationship between the parties. The appellant supplied goods to the respondent. The letter addressed by the respondent prior to the statutory notice clearly shows that the respondent is due in amounts to the appellant. However, the extent of liability is not mentioned any where. All that has been said is that they are expecting the money from the customers and on receipt of the said amount; they would pay the money due to the appellant. The extent of the amount due and how much they are going to pay is not spelled out in the said reply. However when a statutory notice was issued, they have taken a specific stand admitting the liability to the extent of Rs.2, 50,000/-. The respondent's have paid the amount even after the dismissal of the petition during the pendency of this appeal.
8. As rightly observed by the learned Company Judge, though invoices are produced, there is no endorsement showing the receipt of the goods sent under the invoices. However, the respondent acknowledges the receipt of the goods and contends that portions of the goods were not according to the specification and some were defective. Therefore, they admitted the liability to the extent of Rs.2, 50,000/-. Under these circumstances, it cannot be said that there are no dues. Infact, the amount paid by the respondent shows that the objection raised by the respondent cannot be brushed aside so lightly. Admission in the letter prior to the statutory notice is not specific and the amount is not ascertained. The total amount admitted cannot be made out.
9. Under these circumstances taking note of the subsequent event and the conduct of the respondent, we deem it proper to reject this appeal reserving liberty to the appellant to approach the competent civil court to recover the balance amount, which is disputed by the respondent. Accordingly, the appeal is dismissed. Parties to bear there own costs.