- (1.) A. K. Banerjee, J. By means of the abovenoted company petition filed under Sections 433 (e) and 434 (1) (a) of the Companies Act, 1956 (the Act in short) the petitioners M/s. Tayal Pottieries through its sole proprietor (hereinafter referred to as the petitioners) have sought the winding up of the respondent Com pany M/s. Macroplast Pvt. Ltd. (Respon dent Company) on the ground that the said respondent is unable to pay its debts, consequently, it be wound up.
(2.) BRIEFLY stated the petitioner case is that it is engaged in the manufacturing of bushing which are used for transformers. On the orders placed by the respondent company which is basically engaged in the manufacture of transformers, the petitioners supplied goods. The respon dent company defaulted in making pay ment, consequently, a sum of Rs. 89, 123. 75 paisa as on 25-3-95 was due besides interest at the rate of 24% per annum. On request for payment, the respondent is sued a cheque for Rs. 90, 000/- on 8-4-1995 which was returned by the Bank for the reason that the same exceeded arrange ment. When the said fact was brought to the notice of the company one of its Direc tors Shri S. K. Mishra by means of the let ter dated 26-8-1995 expressed regrets and assured the clearance of the dues alongwith compensation, at an early date. It transpires that the said promose was hollow as no payment was made. Conse quently, the petitioners were constrained to serve a statutory notice of demand dated 22- 7-1997 for the aforesaid amount alongwith interest. Despite the service of the notice at the registered office of the respondent, the company failed and neglected to pay the same, consequently the present petition. It is noteworthy that the affidavit in support of the petition was filed by the Satyendra Veer, son of late Baljeet Singh, resident of 409, W. K. Road, Meerut as pairokar and the petition was also signed by the said pairokar. On notice being issued, the com pany put in appearance and filed objection which was supported by an affidavit of one of its directors namely, Shri A. K. Misra, wherein it was, inter alia, asserted that the supplies made by the petitioners were defective and of poor quality on account of which the consignment meant for Orissa got damaged during transit and the same was of no use. It was further stated that, in the meantime, dispute arose between the directors and one Satyendra Veer, Ex-Director of the company after obtaining an order from the SDM, Dadri took pos session of the factory on 17-4- 1995. Sub sequently, however, on contest the factory was handed over to the present Board of Director but the said order was stayed by the High Court. Ultimately the matter was settled by compromise and the company purchased the shares of Satyendra Veer. The cheque which was dishonoured, was during the period when the dispute was going on with the Ex-Director Satyendra Veer. It was pleaded that the petitioners were not entitled to any payment for the damaged goods supplied and there was a bonafide dispute with regard to the same, consequently the petition was not main tainable. It was also asserted that the com pany is commercially sound and can meet its financial commitments and it is incor rect to state that it has become insolvent or cannot pay its debts. The petitioners filed a rejoinder affidavit denying that the goods supplied were of poor quality or were damaged in transit. It was asserted that no such com plaint had been made by the respondent prior to the filing of the present counter-affidavit. So far as the dispute between Satyendra Veer and the present Board of Directors is concerned, it has been stated that the petitioners have no concern with the same.
(3.) I have heard the learned Counsel for the petitioners and Shri S. K. Mishra, the present Managing Director of the company, who appeared in person. It has been contended on behalf of the respon dent that there is not real dispute between the petitioners and the respondent com pany and the present company petition was a camouflage at the instance of Sri Satyendra Veer who after compromising his dispute with the respondent and having walked out of the company has now got the present petition filed to settle his personal vendetta. It is worthy of note that the affidavit filed in support of the petition has not been sworn by the petitioner or the proprietor but by a pairokar namely, Satyendra Veer who admittedly is none else but the same Ex-Director and who has, it appears, dropped his surname to hide his involvement in the present case. Initially this case was heard alongwith two other connected company petitions namely, Company Petitions No. 82 of 1997 and 88 of 1997. The Court had reserved the orders thereof. It was found by the Court that the present petition was not in, accordance with Rule 21 of the Companies (Court) Rules, 1959, conse quently it was directed to be listed for further hearing. Learned Counsel for the petitioners sought adjournment and on the next date he filed an application dated 24-9-98, inter alia, praying that the affidavit filed by Satyendra Veer be accepted in support of the winding up petition or another affidavit which was being filed alongwith the application by the petitioner No. 2 be accepted in support of the winding up petition. I have heard learned Counsel for the parties on the question of maintainability of the petition as well as on the merits of the application dated 24-9-98.;