A.K.SIKRI, J. - (1.) This is a petition seeking winding up of the respondent company filed by the petitioner who claims itself to be a creditor of the respondent company and also contends that the respondent company is unable to pay the debts. The petition is filed under the provisions of Sections 433(e), 434 and 439 of the Companies Act, 1956 (hereinafter referred to as 'the Act'). The basis for the aforesaid plea of being creditor of the respondent company is unable to pay the debts, may first be noted in brief.
(2.) According to the petitioner, the respondent' company (hereinafter called as 'the company') approached the petitioner from time-to-time with the request to supply the Steel Wire Rods according to the required specifications and agreed rates, which were supplied to the company in due course of business. Although details of the invoices/bills vide which these supplies were made are allegedly given in Annexure-A to the petitioner, Annexure-A is in fact the power of attorney executed by the petitioner in favour of Mr. K.C. Khajanchi, an officer of the company who has filed these proceedings (It may however, be mentioned that reading of reply filed by the company would give an indication that there is no specific denial about the supplies and the main defence of the resp9ondent is that goods supplied were defective and excess rates were charged in the bills). According to the petitioner, when the company failed and neglected to make the payments, payments were demanded vide letters dated 29th October, 3rd December, 1998, 19th January, 20th January, 1st February, 18th February, 25th February and 11th March, 1999. Still n6 payment was forthcoming. Instead in reply to the letter dated 29th October, 1998, the company sent the letter dated 30th October, 1998 acknowledging the liability and agreeing to pay the outstanding amount and undertook to release the payment in the month of November, 1998. Relevant portion of this letter reads as under: 'This has reference to your letter No. MISC/ HO/ MKTG/ BMP? F, dated 29.10.1998. It is true no payment could be made to you, since October being a festival month, the Industries remained closed for about 35% of the month thereby affecting the operations as well as cash flow. However, we plan to release the following amounts in your favour in MAH.B300905683_1.htm If an improvement is possible, we shall definitely advise you accordingly. Indication for December shall be given in November-end, but your outstanding shall decrease. During this month also, your outstanding have not increased since no material could be supplied to us against our schedules. Details of outstanding bills as given in your letters under reply tally with our record except that interest element is not included therein and certain amounts have to be recovered by us against rejections as communicated to you already. In the meantime, we thank you for the cooperation extended."
(3.) Thereafter, another letter dated 19th December, 1998 was written by the company again acknowledging liability wherein it was stated that pending bills of the petitioner were being liquidated-may be the pace was slow but the outstanding were coming down every month and the position would likely to improve in the coming months. Some discussion was there in this letter about issuance of certain debit as well as credit notes and about certain rejections and after giving these letters, it was pointed out as under: "After doing all the above exercise, the position emerges as under: MAH.B300905683_2.htm Please confirm the above figures as on date and / or discuss in case of variation.";