A.K.BANERJI, J. - (1.) BY means of this petition filed under Section 433(e) and (f) of the Companies Act, 1956 (hereinafter referred to as the Act), the petitioner Sir Shadi Lal Enterprises Limited (petitioner in short) has sought the winding -up of the respondent company namely, The Co -operative Company Limited, having its registered office at Nawabganj, Saharanpur. U. P. on the ground that the said company is indebted to the petitioner and has not been able to pay its dues despite receipt of the statutory notice, hence is liable to be wound -up by this Court.
(2.) THE petitioner's case, as set out in the petition, in brief, is that the petitioner entered into an agreement for the sale of Rectified Spirit which the petitioner supplied to the respondent -company against allotment orders of the Excise Commissioner, U. P., Allahabad, obtained by the respondent -company. As per the agreement, the supplies were made by the petitioner for the year 1993 -94 which were received and consumed by the respondent -company. It was agreed that the petitioner will be paid the amounts on the basis of running payments against their bills. Subsequently, there was a rise in the price of Rectified Spirit and it was agreed that future supplies would be made at the rate of Rs. 23,50 per bulk litre and the delivery would be made against payment in the form of demand draft along with an extra amount of Rs. 2.00 per bulk litre. The arrangement was signed by one Sri Bhupendra, a director of the respondent -company and by the Senior Executive Director on behalf of the petitioner. At the time of the said arrangement on 2.5.1994, the dues against the respondent -company were to the tune of Rs. 30 lakhs. However, on calculation it was found that the exact amount was Rs. 28,88,529.25 paise to which the petitioner was entitled along with interest at the rate of 24% per annum on the basis of custom and trade practices. As this amount was not paid by the respondent despite demand, the petitioner was constrained to serve a statutory notice dated 31.12.1994 under Section 434 of the Act on the respondent -company. The respondent did not give any reply to the said notice neither made any payment as per the demand, hence, the present petition. On notice being Issued by this Court to the respondent -company to show cause why this petition may not be admitted and advertised, a counter -affidavit has been filed on behalf of the said respondent by one S. S. Bhatnagar. Office Manager, who alleges that he has been duly authorised tofile the affidavit on behalf of the company. In the said counter -affidavit, the respondent, inter alia, denied the figures given by the petitioner and asserted that there was a bona fide dispute between the parties regarding the accounts and the respondent was always willing to pay the amount provided the account was settled. It has been further stated that the parties had business relations since the year 1973 and there was no grievance whatsoever of any kind. They were also having a running account and the accounts used to be settled from time to time as per mutual agreement. The difficulty started when the Central Government decontrolled the price of molasses. This led to instabilfty of the price and charging of excess price of Rectified Spirit by various distilleries. As the relalions between the parties were good, the petitioner vide their letter dated 23.10.1993 agreed to supply Rectified Spirit to the respondent upto 3 lakhs bulk litres at the rate of Rs. 10 per bulk litre and that after the completion of the said supply, a further supply of 2 lakhs bulk litres would be made at the rate of Rs. 11 per bulk litre. Pursuant to this agreement, the petitioner supplied Rectified Spirit and raised bills but instead of Rs. 10 per bulk litre. It charged Rs. 11 to Rs. 11.50 per bulk litre and. subsequently, for the 2 lakhs bulk litres, instead of charging at the rate of Rs. 11, it charged over Rs, 12.50 to Rs. 13 and even Rs. 15 per bulk litre. The difference in the price was pointed out by the respondent -company to the petitioner vide their letter dated 10.11.1993. During the months of January to March, 1994. the petitioner -company had full stock of Rectified .Spirit and were having difficulty regarding the storing of the same. Therefore, they persuaded the respondent to lift Rectified Spirit at the rate of Rs. 12.50 per bulk litre. However, in the bills they charged between Rs. 15.50 to Rs. 18 per bulk litre. On account of the high rates charged by the petitioner company. the respondent stopped lifting the material with effect from 30.1.1994 to 15.2.1994. A telephonic discussion took place on 14.2.1994 and the petitioner had assured that the higher rates would be adjusted and to maintain the business relationship, the respondent lifted the material as is evident from the letter dated 16.2.1994. However, the said adjustment was not made and. hence, there was a bona fide dispute between the parties with regard to the over -charging. Apart from the same, it was further stated in the counter -affidavit that the respondent -Company which was always running in profit had to shift its plant to another place on account of the fact that they did not have adequate place at the factory site for setting up effluent plant which became necessary on account of the directions given by the Supreme Court in the case of M. C. Mehta. The shifting of the factory from Nawabganj to Tapri and setting up of the effluent plant involving heavy expenses and the company had to spend Rs. 2.50 Crores for setting up the effluent plant. Consequently, in the assessment year 1994 -95. the company had to suffer a loss of over Rs. 46.85,395. On account of the said fact, whatever is the balance amount that will be paid to the petitioner as per the settled account but they were not in a position to pay the same in one instalment. It was denied that the company was insolvent or not in a position to pay its dues. Further it was denied that the respondent was liable to pay any interest as there was no such agreement.
(3.) THE petitioner filed a rejoinder -affidavit in which the allegations of the respondent -company that the petitioner had over -charged the respondent -company or that there was any dispute with regards to the bills were denied. It has been further stated that the letters on which the respondent was placing reliance regarding fixing of rate or protesting against excess charging, were not received by the petitioner and the same were alleged to have been sent by ordinary post. It was stated that the bills were raised according to the arrangement between the parties and there is no basis to allege that the dispute was regarding the accounts or the difference in prices. It was further stated that one of the directors of the company had admitted in writing the past dues of over Rs. 30 lakhs. Consequently, the respondent company is estopped from disputing the amount claimed in the statutory notice. It wasfurther stated that as the respondent did not pay its dues according to the custom and trade practice, the petitioner is entitled to claim interest at the rate of 24%. The res pendent -company has not paid its dues despite receipt of statutory notice, consequently, it will be deemed that it is unable to pay its debt and deserves to be wound -up.;