A.K.Ganguly, J. - (1.) The petitioning creditor, M/s. Anand Chemical Company, a registered Partnership Firm under the Indian Partnership Act, filed this winding up petition against M/s. Hind Hosiery Mills Pvt. Ltd. (hereinafter called as the said Company) under sections 433, 434, 439 and 450 of the Companies Act, 1956. The said Company was incorporated on or about 07.07.1948 and is a Company within the meaning of the Companies Act, 1956, having its Registered Office at 161/1 Mahatma Gandhi Road, Calcutta 700 007. The said Company has a share capital of Rs. 70,00,000/- divided into 70,000 equity shares of Rs. 100/-, out of which 49,950 shares have been issued, subscribed and fully paid up.
(2.) It is the case of the petitioning creditor that with the said Company it entered into an agreement in the month of July, 1988 for supply of chemicals. Pursuant to such agreement, supply of chemicals commenced in the month of July, 1988 itself and bills were issued in respect of such supply by the petitioning creditor to the said Company. It is also the case of the petitioning creditor that upon receipt of the supply, the said Company did not raise any objection about the quality of the same and certain bills were paid from time to time. The payment of 11 bills dated between 15.05.1999 to 23.09.1999 for a total sum of Rs. 1,18,648/- became due. The particulars of those bills have been given in a separate statement which is marked 'B' to the petition. Since the payments of the said bills have not been made, the petitioning creditor issued a Debit Note of Rs. 33,119.28p. dated 31.10.2000 on account of interest up to that date on the aforesaid principal and the same was presented before the Company for payment.
(3.) The case of the petitioning creditor is that after the receipt of the said Debit Note, the said Company for the first-time allegedly questioned the quality of the goods supplied by the petitioning creditor by a letter dated 28.11.2000 and, in the said letter, reference was allegedly made to a letter dated 10.08.1999, which was never received by the petitioner. Thereafter, the petitioning creditor sent the statutory notice dated 08.12.2000 through its learned advocate to the said Company. In the said statutory notice, the petitioners stated that no particulars of the alleged "sub-standard quality" in the matter of supply was ever furnished by the said Company. The letter dated 10.08.1999 allegedly sent under Certificate of Posting was never received by the petitioner. It was also pointed out in the said statutory notice that after 10.08.1999, the Company received chemicals from the petitioning creditor on four occasions and even made payment of bills between 24.08.1999 and 29.9.1999. The Company in answer to the said statutory notice by a reply dated 08.01.2001 introduced another letter dated 29.06.2000 allegedly sent under Certificate of Posting complaining of quality. The case of the petitioning creditor is that immediately on receipt of the said letter dated 08.01.2001 which purports to be the reply of the Company to the statutory notice, another registered letter dated 17.01.2001 by the petitioning creditor was sent denying the receipt of either of the two letters dated 29.06.1999 and 10.08.1999. Thereafter, the winding up petition was presented before this Court on 01.02.2001. Initially, nobody appeared for the Company despite service and the matter was posted for hearing under the heading 'Unopposed Matter' on the list of 30.04.2001. Thereafter, an affidavit-in-opposition, affirmed out of time, was forwarded by the learned advocate of the said Company to the learned advocate of the petitioners and, thereafter, leave was granted by this Hon'ble Court on or about 22.05.2001 to the petitioner to file affidavit-in-reply and the affidavit-in-reply was filed.;