Decided on March 31,1997

Gayson Rolling Mills (P.) Ltd. Appellant
Hemkunt Iron And Steel Pvt. Ltd. Respondents


A.L.VAIDYA, J. - (1.)THE present petition for winding up of the respondent company has been preferred by the above named petitioner under Section 433(c), (e) and (f) of the Companies Act, 1956, read with rule 9 of the Companies (Court) Rules, 1959. At the time of submission of the arguments, learned counsel for the petitioner pressed the claim of the petitioner for winding up of the respondent company on the sole ground that the respondent company was unable to pay its debts as is provided under Section 433(e) of the Companies Act. It is with this background that the detailed facts are not essential to be referred to here but the relevant facts giving rise to the present petition are mentioned herein below :
"That the petitioner is a private limited company. Shri K. C. Thakur is a manager and has been duly authorised by the company to file the petition. The petitioner company has a re rolling mill for M. S. rounds tor steel, etc. The petitioner has been purchasing ingots from the respondent company for manufacturing purposes. The petitioner used to place the orders with the respondents and used to send advance amount for the supply of the goods and had an open mutual current running" account with the respondent from April 29, 1986, onwards. From April 29, 1986, to October 21, 1986, various purchases were made by the petitioner. On October 30, 1986, the petitioner advanced a sum of Rs. 50,000 to the respondent company and a credit note of Rs. 1,039 was given on November 24, 1986. In the letter of the respondent dated November 24, 1986, the petitioner was informed by the respondent that it had wrongly charged ingots in excess by Rs. 100 per tonne and adjusted the amount. On December 1, 1986, a sum of Rs. 84,776.03 was due to the petitioner from the respondent and writings were given on various dates pursuant to the notices sent by the petitioners that the amounts due to the petitioner would be paid particularly on May 25, 1987. Ultimately, on October 24, 1989, the respondent company acknowledged and confirmed the amount due and payable as per the books of the respondent company amounting to Rs. 84,776.03 as on March 31, 1988. The petitioner company has been demanding from the respondent company to liquidate the liability and notices dated January. 10, 1991, and August 1, 1992, calling upon the respondent to liquidate the liability and treating the notice under Section 434 of the Companies Act was issued clearly indicating that upon failure to liquidate the liability, winding up petition would be initiated. However, the notice was refused to be taken by the respondent. Copies of the notices and letters exchanged by the parties and notice issued on October 24, 1989, and the original refused notices are attached herewith. The company is unable to pay its debts. As on September 30, 1992, a sum of Rs. 1,73,791.03 is due to the petitioner company which the respondent company has failed to pay and liquidate its liability and settle the accounts. The statement of accounts is attached."

(2.)THE respondent company in reply took various preliminary objections. On the merits, the reply has been as under :
"Contents of para. 5, as alleged, are not admitted to be correct and, therefore, denied. Along with the petition, there is nothing supplied to the respondent to show that either Shri K. C. Thakur is the manager and/or he is duly authorised by the company to file the petition. In these circumstances, the petition is not at all maintainable. Besides this, it is not filed by the person competent to do so, and that being the position, it is liable to be rejected. Alternatively, it is submitted that Shri K. C. Thakur is no more entitled to continue the present petition inasmuch as the petitioner company has been leased out along with the unit in question to United Ispaat, Baddi, and in this view of the matter, the company petition is liable to be rejected. It is further submitted that the facts alleged in this para, regarding the amount being due in the sum of Rs. 1,73,791.03 as on September 30, 1992, are emphatically denied ; it is further submitted that no writing by any person authorised or any one who was competent to make any acknowledgment on behalf of the respondent company was ever given. It is further submitted that the so called confirmation and acknowledgment dated October 24, 1989, does not bind the respondent company in any manner whatsoever. It is further pointed out that there was no open mutual current running account as alleged by the petitioner. On the other hand, it was a simple relationship of seller and buyer of goods between the parties. The claim, if any, as alleged, is hopelessly barred by time. No notices were either served upon the respondent company or even presented to any one authorised on its behalf by any one including the postal authorities. In these circumstances, it appears that the petitioner has been able to manage the postal endorsement of refusal. Had any such notice(s) been delivered at the registered office of the company and/or presented by the postal authorities that would have been promptly replied to by the respondent. It is totally incorrect for the petitioner to say that the respondent company has failed to pay and liquidate its liability. The correctness of the statement of account is specifically denied. It is a self serving statement prepared by the petitioner."

In rejoinder the petitioner company reasserted the allegations made in the petition but in addition added that a sum of Rs. 1,73,791.03 was due to the petitioner on September 30, 1992, and the amount now due and payable by adding interest at the rate of 18 per cent, per annum after September 30, 1992, is Rs. 1,97,957.78 up to April 30, 1994.

(3.)LEARNED counsel for the parties have been heard and the record has been scrutinised.

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