Vinodray Amarchand Parekh Vs. Satish Solvent Extractions Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/337812
SubjectCompany
CourtMumbai High Court
Decided OnOct-28-1993
Case NumberCompany Petition No. 2 of 1962
JudgeM.S. Rane, J.
Reported in[1995]82CompCas362(Bom)
ActsCompanies Act, 1956 - Sections 433
AppellantVinodray Amarchand Parekh
RespondentSatish Solvent Extractions Ltd.
Appellant Advocate N.G. Thakkar and ;J.M. Shah, Advs.
Respondent AdvocateP.N. Karlekar and ;M.K. Nesari, Advs.
Excerpt:
company - winding up - section 433 of companies act, 1956 - petition seeking winding up of respondent-company on ground that it was unable to pay its debts - finding of facts - respondent-company defaulted in making payment to petitioner as goods were not in accordance with their order and requirement - petitioner was made aware of said fact by way of telegram - defence raised by respondent was held to be genuine and bona fide - petition liable to be dismissed. - m.s. rane j.1. by this petition, the petitioner is seeking winding up of the respondent-company, satish solvent extractions ltd., on the ground that the said company is unable to pay its debts. the claim of the petitioner relates to the balance price of the goods sold and supplied by them to the respondent-company. 2. the petitioner has in para 6 of the petition stated the various particulars with regard to the supply made to the respondent-company and raising of his invoices in respect of the said supply and payment of some of the bills. it is noticed that there are seven bills as mentioned in para 6 out of which the respondent-company, even according to the petitioner himself has paid the amount of the first five bills. the last two bills for a total sum of rs. 85,367.78 have remained unpaid and despite demands the respondent even after service of statutory demand notice did not pay. hence, the petition. 3. the respondent-company has filed an affidavit and have pointed out that as far as the first five bills are concerned and the material supplied thereunder the same, i.e., the material was in accordance with their order and requirement. whereas as far as the material supplied vide last two bills the same was not in accordance with their order and they brought the said fact to the notice of the petitioner by their telegram dated june 5, 1990. it is most significant to note that the petitioner himself in para 7 of the petition has made a mention about the receipt of the telegram. the said telegram reads : 'at seamless tubes supplied and billed by you are erw pipes send your representative for verify.' 4. it is, therefore, the contention of the respondent-company that the goods supplied were not in accordance with their order and requirement which fact was brought to the notice of the petitioner promptly. they have also stated in their affidavit that since the goods supplied were not of the quality the only amount they are liable to pay to the petitioner is a sum of rs. 8,363. it may be added that when this petition appeared before my brother judge shri dhanuka on july 22, 1993, an order was made directing the respondent-company to deposit the said admitted amount in the court. however, across the bar, it is stated that instead of depositing the said amount in the court the respondent-company sent their cheque directly to the petitioner and petitioner's advocate also admits having received the said cheque but states that since it was not in accordance with the order of the court, they have not encashed the said cheque. the short point that falls for consideration is whether the defence raised by the company is bona fide and the answer has to be in affirmative. 5. in the first instance the company, as admitted by the petitioner himself in para 7 of the petition by telegram brought to the notice of the petitioner that the goods supplied were not as per specification and requirement of their order. thus, it would be noticed that at the earliest opportunity possible the respondent-company have raised a dispute. it may not be proper to state that it is an afterthought device invented to defeat the claim of the petitioner. 6. in the circumstances, i hold that the defence raised by the respondent-company is genuine and bona fide. the petition is, therefore, liable to be dismissed. 7. before concluding something needs to be stated about the payment of sum of rs. 8,363 which was ordered by my brother, judge dhanuka. as stated earlier, the respondent-company have already sent their cheque of the said amount to the petitioner. it is made clear on behalf of the petitioner that the petitioner would accept the amount under the order of the court and without prejudice to his rights. 8. in the circumstances, the following order is passed : (i) petition is dismissed. no order as to costs. (ii) in view of statement made with regard to the sum of rs. 8,363 the petitioner to return the cheque to the respondent-company received by him and in lieu thereof the respondent-company shall send their fresh cheque in favour of the petitioner for the said amount which the petitioner to accept without prejudice to his rights and contentions. (iii) issuance of certified copy is expedited.
Judgment:

M.S. Rane J.

1. By this petition, the petitioner is seeking winding up of the respondent-company, Satish Solvent Extractions Ltd., on the ground that the said company is unable to pay its debts. The claim of the petitioner relates to the balance price of the goods sold and supplied by them to the respondent-company.

2. The petitioner has in para 6 of the petition stated the various particulars with regard to the supply made to the respondent-company and raising of his invoices in respect of the said supply and payment of some of the bills. It is noticed that there are seven bills as mentioned in para 6 out of which the respondent-company, even according to the petitioner himself has paid the amount of the first five bills. The last two bills for a total sum of Rs. 85,367.78 have remained unpaid and despite demands the respondent even after service of statutory demand notice did not pay. Hence, the petition.

3. The respondent-company has filed an affidavit and have pointed out that as far as the first five bills are concerned and the material supplied thereunder the same, i.e., the material was in accordance with their order and requirement. Whereas as far as the material supplied vide last two bills the same was not in accordance with their order and they brought the said fact to the notice of the petitioner by their telegram dated June 5, 1990. It is most significant to note that the petitioner himself in para 7 of the petition has made a mention about the receipt of the telegram. The said telegram reads :

'At Seamless Tubes supplied and billed by you are ERW pipes send your representative for verify.'

4. It is, therefore, the contention of the respondent-company that the goods supplied were not in accordance with their order and requirement which fact was brought to the notice of the petitioner promptly. They have also stated in their affidavit that since the goods supplied were not of the quality the only amount they are liable to pay to the petitioner is a sum of Rs. 8,363. It may be added that when this petition appeared before my brother Judge Shri Dhanuka on July 22, 1993, an order was made directing the respondent-company to deposit the said admitted amount in the court. However, across the Bar, it is stated that instead of depositing the said amount in the court the respondent-company sent their cheque directly to the petitioner and petitioner's advocate also admits having received the said cheque but states that since it was not in accordance with the order of the court, they have not encashed the said cheque. The short point that falls for consideration is whether the defence raised by the company is bona fide and the answer has to be in affirmative.

5. In the first instance the company, as admitted by the petitioner himself in para 7 of the petition by telegram brought to the notice of the petitioner that the goods supplied were not as per specification and requirement of their order. Thus, it would be noticed that at the earliest opportunity possible the respondent-company have raised a dispute. It may not be proper to state that it is an afterthought device invented to defeat the claim of the petitioner.

6. In the circumstances, I hold that the defence raised by the respondent-company is genuine and bona fide. The petition is, therefore, liable to be dismissed.

7. Before concluding something needs to be stated about the payment of sum of Rs. 8,363 which was ordered by my brother, Judge Dhanuka. As stated earlier, the respondent-company have already sent their cheque of the said amount to the petitioner. It is made clear on behalf of the petitioner that the petitioner would accept the amount under the order of the court and without prejudice to his rights.

8. In the circumstances, the following order is passed :

(i) Petition is dismissed. No order as to costs.

(ii) In view of statement made with regard to the sum of Rs. 8,363 the petitioner to return the cheque to the respondent-company received by him and in lieu thereof the respondent-company shall send their fresh cheque in favour of the petitioner for the said amount which the petitioner to accept without prejudice to his rights and contentions.

(iii) Issuance of certified copy is expedited.