- (1.) There is substantial basis to the petitioning creditor's claim, but it cannot be allowed in this summary jurisdiction on affidavit evidence. The parties have had transactions for a substantial period of time and upon payments remaining due from the company to the petitioner and the petitioner refusing to effect further supplies, the parties' representatives met in July of 2009. The minutes of the meeting of July 30, 2009 recorded, inter alia, that a sum of Rs. 32 lakh would be paid by the company to the petitioner in respect of the previous transactions. The modality of the payment was also indicated in the minutes. The other aspect taken up in the minutes was the course of future supply of goods by the petitioner to the company. The minutes provided that further supplies would be effected against letters of credit to be opened by the company in favour of the petitioner. That, in itself, was the first indication that the petitioner did not have faith in the company's ability to discharge its debts and the company was also constrained to accede to the petitioner's demand of a more secure form of payment than had been the practice thereto before followed by the parties.
(2.) Out of the sum of Rs. 32 lakh in respect of the previous transactions recorded in the minutes of July 30, 2009, an amount of Rs. 20 lakh was released by the company to the petitioner and the balance sum of Rs. 12 lakh remained due. The petitioner effected supplies to the company subsequent to the meeting, whether or not against letters of credit it is unclear and altogether irrelevant.
(3.) The present winding-up petition has been carried on the petitioner's claim of the admitted sum of Rs. 12 lakh that remains unpaid out of the sum of Rs. 32 lakh clearly referred to in the minutes of the meeting held on July 30, 2009. The petitioner has also instituted a suit in the Alipore Court on account of the transactions between the parties subsequent to July 30, 2009, claiming as an unpaid seller. The company has counter-claimed in such suit. The counter-claim indicates that the petitioner did not supply the goods in time to the company following which the company was required to purchase the goods at a higher price from the market. The counter-claim is in respect of the difference of price that the company had to bear allegedly on account of the petitioner herein. Since such other suit is pending, the merits thereof cannot be gone into in the present proceedings.;