Mow Chong Tennery Private Limited Vs. Elegant Fashion Fibre Chemicals Ltd and anr - Court Judgment

SooperKanoon Citationsooperkanoon.com/1059376
CourtKolkata High Court
Decided OnJul-05-2012
JudgeBANERJEE
AppellantMow Chong Tennery Private Limited
RespondentElegant Fashion Fibre Chemicals Ltd and anr
Excerpt:
1 order sheet apo no.24 of 2012 cp no.68 of 2010 in the high court at calcutta civil appellate jurisdiction original side mow chong tennery private limited versus elegant fashion fibre chemicals ltd & anr before: the hon'ble justice ashim kumar banerjee the hon'ble justice shukla kabir (sinha) date :5. h july, 2012. appearance: mr.mouima khan, advocate for the appellant. mr.a.k. ghosh and mr.b.tasheen ahmed, advocates for the respondents. the court :- parties entered into an agreement for supply of chemicals. it is not clear from the petition, what is the exact date of start of supply. we even find that the respondents established their claim on the basis of an opening balance as on april 01, 2009 to the extent of rs.4,92,891/-. the statement set out in pages 10 to 13 would show that in the financial year april 01, 2009 to march 31, 2010 there had been series of transactions. we find payment being forthcoming as a lumpsum amount. last date of payment that was received in the said year is on october 15, 2009. during the said period two cheques for rs.14,000/- and 11,000/respectively dated july 3, 2009 and september 10, 2009 got dishonoured paragraph as 8 claimed of the by the petitioning petition. the creditors in respondent/petitioning creditors ultimately claimed a sum of rs.5,06,285/- on account of petitioner no.1 and sum of rs.6,13,698/- on account of petitioner no.2. pertinent to note, the statement of account referred to above would relate to both the petitioners.in case of petition no.1 as on march 31, 2010 a sum of rs.5,06,285 became due and payable whereas in respect of petition no.2 the said sum of rs.6,13,698/- became due. initially demand notice was served on may 23, 2006 as we find from page 237 of the paper book. the company by its letter dated june 8, 2006 appearing at page 239 asked for some time to pay off. the company says “we request you to bear with us for sometime and we assure you we shall gradually clear the dues we owed you”.there had been a meeting on october 7, 2006 as we find from the minutes appearing at page 238. the company agreed to start clearing the dues after 3 months i.e.from january, 2007. nothing fruitful happened thereafter. vide letter dated 12th september, 2006 the company proposed to clear up the dues by issuing 90 days post dated cheques for current supply and then to start clearing up the old dues within 6 months. nothing materialized. the respondent petitionering creditors issued a statutory notice of demand on january 6, 2010 appearing at page 241, inter-alia, demanding the aforesaid sums as above. the company did not reply, at least we do not find any such reply on record, giving rise to the winding up proceeding. the company contested the proceeding by filing affidavit-in-opposition. they relied on a complaint dated june 20, 2005 appearing at page 255. they also relied on a statement appearing at pages 256 and 257 in respect of both the petitioners saying that the amounts stood adjusted leaving an insignificant balance of rs.49,135.40 and rs.46,937.80 in respect of petitioner nos.1 and 2 respectively. the learned single judge heard the parties and admitted the winding up petition vide order dated november 22, 2001 appearing at pages 267-271 of the paper book. his lordship disbelieved the defence as set forth in the affidavit-in-opposition. his lordship observed, “there was no contemporaneous grievances raised by the company upon the bills being raised by the petitioners.in fact, the bills remain undisputed. the wild allegation made by the company that the petitioners were liable for the alleged loss of rs.4 crore to the company is unsubstantiated and is contrary to the company’s letters of the year 2006”.pertinent to note, such plea of suffering damages of rs.4 crores surfaced only when an affidavit-in-opposition was filed and an argument was advanced to such extent before his lordship. his lordship admitted the winding up petition for the entire claim as above and directed advertisement to be published. hence this appeal. mr.raja basu chowdhury, learned counsel for the appellant company contends that the claim of the respondent was bonafidely disputed by the company. the company already paid rs.2.25 lacs to the respondent in terms of the order of the learned division bench. hence it could not be said that the company was insolvent. pertinent to note, the said sum of rs.2 lacs and rs.25 lacs respectively in respect of both the petitioners would relate to value of the dishonoured cheques that was paid in part satisfaction of the claim of both the petitioners.on a query made by this court as to whether the appellant company would be agreeable to pay by instalments mr.basu chowdhury prayed for an accommodation so that he could revert back on the issue upon proper instruction. hence we concluded the hearing and directed the appeal to be listed for judgment yesterday. yesterday it was called on several times. none appeared on behalf of the appellant. today also mr.basu chowdhury without is not having present. any however, appropriate his junior instruction on is present the issue. learned counsel informs this court that the company is not in a position to secure the claim of the respondent. she is also not having any appropriate instruction on the issue of payment. we have considered the rival contentions. from the facts narrated above, it is clear, the company is really in precarious condition. their existence is a real threat to the commercial world. it is a fit and proper case where the winding up petition should be proceeded with. the learned judge admitted the winding up petition that does not deserve any interference. the appeal fails and is hereby dismissed. there would, however, be no order as to costs. urgent xerox certified copy of this order, if applied for, be given to the parties upon compliance of all formalities. (banerjee, j.) (shukla kabir (sinha).j.) dg/
Judgment:

1 ORDER

SHEET APO No.24 of 2012 CP No.68 of 2010 IN THE HIGH COURT AT CALCUTTA Civil Appellate Jurisdiction ORIGINAL SIDE MOW CHONG TENNERY PRIVATE LIMITED Versus ELEGANT FASHION FIBRE CHEMICALS LTD & ANR BEFORE: The Hon'ble JUSTICE ASHIM KUMAR BANERJEE The Hon'ble JUSTICE SHUKLA KABIR (SINHA) Date :

5. h July, 2012.

Appearance: Mr.Mouima Khan, Advocate For the appellant.

Mr.A.K.

Ghosh and Mr.B.Tasheen Ahmed, Advocates For the respondents.

The Court :- Parties entered into an agreement for supply of chemicals.

It is not clear from the petition, what is the exact date of start of supply.

We even find that the respondents established their claim on the basis of an opening balance as on April 01, 2009 to the extent of Rs.4,92,891/-.

The statement set out in pages 10 to 13 would show that in the financial year April 01, 2009 to March 31, 2010 there had been series of transactions.

We find payment being forthcoming as a lumpsum amount.

Last date of payment that was received in the said year is on October 15, 2009.

During the said period two cheques for Rs.14,000/- and 11,000/respectively dated July 3, 2009 and September 10, 2009 got dishonoured paragraph as 8 claimed of the by the petitioning petition.

The creditors in respondent/petitioning creditors ultimately claimed a sum of Rs.5,06,285/- on account of petitioner no.1 and sum of Rs.6,13,698/- on account of petitioner no.2.

Pertinent to note, the statement of account referred to above would relate to both the petitioneRs.In case of petition no.1 as on March 31, 2010 a sum of Rs.5,06,285 became due and payable whereas in respect of petition no.2 the said sum of Rs.6,13,698/- became due.

Initially demand notice was served on May 23, 2006 as we find from page 237 of the Paper Book.

The Company by its letter dated June 8, 2006 appearing at page 239 asked for some time to pay off.

The Company says “we request you to bear with us for sometime and we assure you we shall gradually clear the dues we owed you”.There had been a meeting on October 7, 2006 as we find from the minutes appearing at page 238.

The Company agreed to start clearing the dues after 3 months i.e.from January, 2007.

Nothing fruitful happened thereafter.

Vide letter dated 12th September, 2006 the Company proposed to clear up the dues by issuing 90 days post dated cheques for current supply and then to start clearing up the old dues within 6 months.

Nothing materialized.

The respondent petitionering creditors issued a statutory notice of demand on January 6, 2010 appearing at page 241, inter-alia, demanding the aforesaid sums as above.

The Company did not reply, at least we do not find any such reply on record, giving rise to the winding up proceeding.

The Company contested the proceeding by filing affidavit-in-opposition.

They relied on a complaint dated June 20, 2005 appearing at page 255.

They also relied on a statement appearing at pages 256 and 257 in respect of both the petitioners saying that the amounts stood adjusted leaving an insignificant balance of Rs.49,135.40 and Rs.46,937.80 in respect of petitioner Nos.1 and 2 respectively.

The learned Single Judge heard the parties and admitted the winding up petition vide order dated November 22, 2001 appearing at pages 267-271 of the Paper Book.

His Lordship disbelieved the defence as set forth in the affidavit-in-opposition.

His Lordship observed, “there was no contemporaneous grievances raised by the Company upon the bills being raised by the petitioneRs.In fact, the bills remain undisputed.

The wild allegation made by the Company that the petitioners were liable for the alleged loss of Rs.4 crore to the Company is unsubstantiated and is contrary to the Company’s letters of the year 2006”.Pertinent to note, such plea of suffering damages of Rs.4 crores surfaced only when an affidavit-in-opposition was filed and an argument was advanced to such extent before His Lordship.

His Lordship admitted the winding up petition for the entire claim as above and directed advertisement to be published.

Hence this appeal.

Mr.Raja Basu Chowdhury, learned Counsel for the appellant company contends that the claim of the respondent was bonafidely disputed by the Company.

The Company already paid Rs.2.25 lacs to the respondent in terms of the order of the learned Division Bench.

Hence it could not be said that the Company was insolvent.

Pertinent to note, the said sum of Rs.2 lacs and Rs.25 lacs respectively in respect of both the petitioners would relate to value of the dishonoured cheques that was paid in part satisfaction of the claim of both the petitioneRs.On a query made by this Court as to whether the appellant company would be agreeable to pay by instalments Mr.Basu Chowdhury prayed for an accommodation so that he could revert back on the issue upon proper instruction.

Hence we concluded the hearing and directed the appeal to be listed for judgment yesterday.

Yesterday it was called on several times.

None appeared on behalf of the appellant.

Today also Mr.Basu Chowdhury without is not having present.

any However, appropriate his junior instruction on is present the issue.

Learned Counsel informs this Court that the Company is not in a position to secure the claim of the respondent.

She is also not having any appropriate instruction on the issue of payment.

We have considered the rival contentions.

From the facts narrated above, it is clear, the Company is really in precarious condition.

Their existence is a real threat to the commercial world.

It is a fit and proper case where the winding up petition should be proceeded with.

The learned Judge admitted the winding up petition that does not deserve any interference.

The appeal fails and is hereby dismissed.

There would, however, be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.

(BANERJEE, J.) (SHUKLA KABIR (SINHA).J.) dg/