- (1.) THESE two Notices of Motion, one taken out by the plaintiffs Techno Fire Protection Services Pvt. Ltd. namely Notice of Motion No. 1056 of 2001 and the other taken out by defendants MTZ Polyesters Ltd. being Notice of Motion No. 2218 of 2001, can be disposed of by this common order.
(2.) THE facts which are required to be stated for understanding controversy between the parties are as follows : there was a concluded contract between the plaintiffs and the defendants, whereby, the plaintiffs sold and delivered to the defendants, fire protection equipment in accordance with the said contract, worth a total amount of Rs. 75,88,413. 63. The goods were received by the defendants. The plaintiffs case is that no grievance was made by the defendants at that time with respect to the quality or quantity. The defendants made part payment to the plaintiffs of a sum of Rs. 60,00,000/- between October, 1996 and March, 1997. The remaining amount of Rs. 15,88,413. 63 was however not paid by the defendants to the plaintiffs. This transaction was of 14th June, 1996. Thereafter, there was exchange of correspondence between the parties. One such letter was a letter written by the plaintiffs dated 12th May, 1998, wherein, details of the bills raised and payments received till then was mentioned, and the plaintiffs called upon the defendants to certify the balance payment due to the plaintiffs as per the enclosed statement. The plaintiffs case is that the authorised signatory of the defendants thereafter certified at the foot of the said letter, as follows: "to WHOMSOEVER IT MAY CONCERN we hereby certify that the balance amount payable to M/s. Techno Fire Protection Services Private Limited as on 31st March, 1998 as our books of account is Rs. 15,88,413. 63 (Rupees Fifteen Lakhs Eighty Eight Thousand Four Hundred Thirteen and Paise Sixty Three only ). For MTZ Polyester Ltd. Sd/-Authorised Signatory. " The rubber stamp of the defendants was affixed to the said letter.
(3.) THE plaintiffs contention is that the defendants thus unconditionally acknowledged their liability to pay to the plaintiffs the said sum of Rs. 15,88,413. 63 and the defendants had failed and neglected to pay the said sum or any part thereof. Thereafter, the plaintiffs issued notice to the defendants under section 434 of the Companies Act, 1956, and when no payment was received even against the said notice, the plaintiffs filed a company petition in this Court being Company Petition No. 1179 of 1999, praying inter alia that the defendant Company be wound-up on the ground that it was unable to pay its debts.;