Shyamal Kumar Sen, J. - (1.) This appeal is directed against a Judgment & Order passed by the learned Single Judge, whereby the appellant was directed to furnish security for Rs. 24,71,252/-, although the learned Single Judge recorded, inter alia, as follows : "At this stage it is not possible for me to go into such details on the basis of affidavits filed by them. The grounds taken in the affidavit-in-opposition, in my opinion, has expressed a debatable point that whether the company has a case against the petitioner in respect of the claim asked by the petitioning creditor in this petition. In my opinion, such defence taken by the company is not a moonshine defence and should be decided on evidence by the parties to be adduced after institution of the suit before the appropriate forum." It appears that the learned Single Judge has based the direction given by him for furnishing of security on the basis that the amount claimed is really on the basis of the agreement between the parties and in fact, that amount has been paid by the company.
(2.) The contention of Mr. S.N. Mukherjee and Mr. P.P. Banerjee, learned Advocates appearing for the appellant, is that the judgment and decision of the learned Single Judge on the fact of it appear to be inconsistent, since the learned Single Judge himself has found that a debatable point has been raised by the company in its affidavit-in-opposition to the winding-up petition and that the defence taken by the company is not a moonshine defence and should be decided on evidence by the parties to be adduced after institution of the suit before the appropriate forum. According to the appellant, the learned Single Judge was not justified in directing furnishing of security for Rs. 24,71,252/-. It has argued of teh appellant if there is a moonshine defence, there is no need for directing furnishing of security. In support of his contention, the learned Advocate for the appellant has relied on the following decisions:- i) AIR 1977 Supreme Court 577 (M/s. Mechalee Engineers & Manufacturers v. M/s Basic Equipment Corporation); ii) 1994 (1) CHN 409 (Dunlop India Ltd. v. Anamika Udyog ); iii) (1994) 3 SCC 348 (Pradeshiya Industrial & Investment Corporation of U.P. v. North India Petrochemicals Ltd., & Anr.) iv) AIR 1998 Supreme Court 2317 (M/s. Sunil Enterprises & Ann v. SBI Commercial & International Bank Ltd.) ; and v) (1999) 4 SCC 423 (Superintending Engineer & Ors. v. B. Subba Reddy ). It has also been argued on behalf of the appellant that a suit has already been filed, wherein they have specifically alleged that no money is due and payable by the company to the petitioning creditor.
(3.) It has been argued on behalf of the respondent, however, by Mr. P.K. Mullick, Senior Advocate, appearing with Mr. Siddhartha Mitra, Advocate, that there are two agreements. So far as the first agreement is concerned, Mr. Mullick has strongly relied on "Statement of Green Leaf Supplied & Payment Received, Account of Greenline Tea & Exports Limited (A/c Iringmara Tea Estate)", being Annexure-"B" to the winding-up petition, which is at page 54 of the stay-petition, and has submitted that there is no defence of the company, so far as the balance due as on 31/3/1998 i.e., Rs. 1,00,000/-, as shown in the said statement is concerned. So far as the second agreement for supply for Green Leaf is concerned, the appellant-company has appropriated the said Tea Leaves supplied by the respondent, although Mr. Mullick on behalf of the respondent could not dispute that three letters had been sent by the company disputing the quality of the said Tea Leaves supplied. In fact, in the said three letters, the appellant- company has specifically alleged that the said Tea Leaves supplied by the respondent are of inferior and sub- standard quality and the appellant-company had agreed to pay more for better quality of Green Leaf at Rs. 10.50 per K.G., although the usual price that was being charged for the same was Rs. 7.50 per K.G. No doubt, a reply has been sent to the said letters, by a letter dated January 21, 1999, although the said three letters had been sent by the appellant-company on 9.9.98, 25.12.98 and 30.12.98 respectively.;