Aniruddha Bose, J. - (1.) The petitioning creditor had supplied green leaf tea to Bijoynagar Tea Company Ltd. (BTCL) in pursuance of a memorandum of understanding executed on 18 July 2003 between 22 July and 24 November 2003. It is the case of the petitioner that green leaf tea was supplied to BTCL at agreed rate from time to time in good order and condition and the latter had appropriated the same for profit. Bills were raised for supply of such tea, and the case of the petitioner is that a sum of Rs. 12,48,239.42/ - remained outstanding, as BTCL upon receipt of such bills did not pay up the entire amount specified in the bill but made part payment only.
(2.) The petitioner demanded the sum due, as also sales tax declaration forms, by writing letters, copies of which have been made annexures "E" and "F" to the petition. Thereafter, the petitioner, through their learned Advocates issued a notice on 28 January 2004 under Sec. 434 of the Companies Act, 1956, calling upon BTCL to pay Rs. 12,48,239.42/ - along with interest which was calculated to be Rs. 52,853/ - up till 31 December 2003. Demand was also made for further interest @ 18% p.a. with effect from 1 January 2004. BTCL responded to this letter denying their liability. Their defence was that substantial quantum of tea supplied by the petitioner was of inferior quality. Thereafter, the present proceeding was instituted. The case of the petitioner is that BTCL received the tea supplied to them without raising any question on its quality, and the defence of supply of inferior tea was only an afterthought.
(3.) BTCL contested this petition by filing affidavit -in -opposition. In their affidavit -in -opposition certain statements have been annexed, on the strength of which they sought to contend that the difference in qualify of tea was all along brought to the notice of the petitioning creditor. Learned Counsel for BTCL stressed on the fact that the memorandum of understanding specified that the price of tea would be at the rate 1.25 per kg as premium in addition to Terai circular price and the tea dispatched by the petitioner did not fulfill the requisite quality. The defence of BTCL is that the premium price was payable only in respect of fine tea leaf count of 45 percentage and above. In cases where the tea supplied fell below the quality specified, the case of BTCL is that the said fact was informed to the petitioner, and tea of such quality would fetch price lesser than what was agreed for premium quality. It has also been argued that the memorandum of understanding itself provided a dispute resolution mechanism, which is through a process of amicable settlement. Accordingly, it was contended that the price of tea was to be determined through such process, and price of tea which formed the basis of BTCL's claim was not the appropriate price. On this count, BTCL has prayed for dismissal of the petition. In support of his submissions that in the event bona fide dispute is raised against a claim, proceeding for winding up would not lie, the following authorities have been relied upon by the Learned Counsel for BTCL: (a) Mediqup Systems Pvt. Ltd. v/s. Proxima Medical System CMDH, 124 CC 473 (b) Madhusudan Gordhandas & Co. v/s. Madhu Woollen Industries Pvt. Ltd., 42 CC 125;