- (1.) This is a winding up application at its admission stage. The company is very old. It was incorporated on November 14, 1912 and is an existing company under the Companies Act, 1956. The petitioning-creditor carries on business in the name of D. M. Engineering Works at Chalsa in District Jalpaiguri in the State of West Bengal. His case is that between May 8, 1998 and October 16, 2009, he performed a number of works of repairing machinery, constructing buildings and repairing the factory of the company at their Kailashpur Tea Estate. Bills were raised for Rs. 44,54,777 the company paid Rs. 24,11,619 the last payment being made on July 10, 2009. There is due and payable a sum of Rs. 20,43,158. The petitioning-creditor claims interest on the said sum of Rs. 20,43,158 at 18 per cent, per annum from July 10, 2009. It is said on behalf of the petitioning-creditor by Mr. S. B. Mookherjee, the learned senior advocate that on October 6, 2008, the Income-tax Department wrote a letter to the petitioning-creditor. The subject of the letter was with regard to the transaction of the petitioning-creditor with the company for the financial year 2002-03 which corresponded to assessment year 2003-04. The Income-tax Department asked the petitioning-creditor to furnish details of their transactions with the company for the said period along with a statement of any balance outstanding from them as on March 31, 2003. By their letter dated October 19, 2008, the company replied that "closing balance as on March 31, 2003, was Rs. 22,56,571". They asked for confirmation of the above balance from the petitioning-creditor. There is an endorsement at the foot of the letter "balance confirmed" and signed. I presume that it is the signature of the petitioning-creditor. That letter was acted upon. The petitioning-creditor by his letter dated October 23, 2008, sent the above information to the Assistant Commissioner of Income-tax Department, 1/2, Naya Basti, Jalpaiguri.
(2.) It was further said on behalf of the petitioning-creditor that by the statutory notice dated January 15, 2010, issued on behalf of them the said sum of Rs. 20,43,158 was claimed. Detailed statement of accounts was also sent with that letter which ran into 18 pages. That statutory notice was replied to by the company by their letter dated February 4, 2010. The reply stated that considering the friendly relationship between the petitioning-creditor and the company, the company had made an acknowledgement of the outstanding balance as on March 31, 2003, to be Rs. 22,56,571. Taking advantage of that balance confirmation the petitioning-creditor had issued the notice. The statement did not disclose a "current and running account". The claim was barred by limitation. The petitioning-creditor was asked to produce all supporting documents.
(3.) Mr. Hirak Kr. Mitra, the learned senior advocate assisted by Debdutta Sen, the learned advocate argued this application on behalf of the company. He relied on the affidavit-in-opposition filed on behalf of the company affirmed on May 3, 2010, by one Piyush Kanti Rahut. According to paragraph 3 "k" of this affidavit several bills of the petitioning-creditor had been paid, except 13 bills dated April 7, 2002, April 7, 2002, May 19, 2002, June 2, 2002, June 2, 2002, July 17, 2002, August 11, 2002, September 8, 2002, October 6, 2002, October 6, 2002, November 9, 2002, December 15, 2002 and January 25, 2003. These bills added roughly to the sums claimed that is Rs. 20,44,720. There was no work order for these bills. Neither was any work done. These bills were raised by the petitioning-creditor in collusion with the staff of the Tea Estate. The above acknowledgement of debt was obtained by the petitioning-creditor by dominating the will of the persons in management of the company. The company made excess payment of Rs. 2,65,977.;