Salil K.Roy Chowdhury, J. - (1.) This is an application for stay of a Company Petition No. 201 of 1971, including all proceedings thereunder.
(2.) The relevant facts are as follows : The petitioning-creditor (hereinafter referred to as "the respondent "), pursuant to diverse orders received on different dates at an agreed rate, sold and delivered to the applicant (hereinafter referred to as " the company "), various mill stores and equipment between October, 1968, and July, 1969, and submitted their bills. The respondents submitted their bills to the company which were accepted by the company and the company from time to time made diverse payments and a sum of rupees 98,583.44 remained due by the company to the respondent in respect of balance of price of goods sold and delivered as aforesaid. As the company failed to pay the respondents the said dues, the respondents by a notice of their solicitor dated the 28th of November, 1970, served on the company under Section 434 of the Companies Act, 1956. The company never replied to the said letter. Thereafter, on the 18th of May, 1971, the respondent presented the said Company Petition No. 201 of 1971 for winding up of the company. Thereafter, on the 8th of July, 1971, the present application for stay of winding up proceeding has been filed by the company.
(3.) Mr. Biswarup Gupta, appearing for the company, submitted relying on the allegations in the affidavit of one P. K. Mahadevan, the chief accountant of the company, affirmed on the 7th of July, 1971, in support of this application in or about November, 1968, that there was an alleged oral agreement between the company represented by the deponent and one partnership firm, Shri Laxmi Trading Company, represented by Umasankar Saraf, a partner thereof, and Binode Kumar Saraf, representing the respondent, that all outstanding and/or dues from the said firm, Shri Laxmi Trading Company, to the company would be set off periodically against the total dues of the company to the respondent and whatever balance would remain after such adjustment would be paid by the said firm, Shri Laxmi Trading Company, to the company. It was alleged that a large sum of about Rs. 7,58,120.65 was due and owing to the company by the said Shri Laxmi Trading Company and as the dues of the company from the said Shri Laxmi Trading Company have always been much more than the total dues of the respondent from the company as such no set-off was ever effected by the respondent and the said firm. It was alleged that most of the shares of the respondent-company are owned by Binode Kumar Saraf and Inderchand Saraf, and/or their nominees and/or family members. It was alleged that the respondent is really in the nature of a partnership and a family concern. The said Binode Kumar Saraf is also a partner of the said Shri Laxmi Trading Company. It was again alleged that after the said statutory notice was served by the respondent on the company the deponent rang up Binode Kumar Saraf and there was a discussion between them in the 3rd week of December, 1970. It is also alleged to have been agreed between them that no further notice need be taken of the said statutory notice served by the respondent on the company. It was further alleged that it was agreed by the said oral discussion with the deponent and Binode Kumar Saraf and one Umasankar Saraf, a partner of the said firm of Shri Laxmi Trading Company, that the dues of the company against the said firm of Shri Laxmi Trading Company should be paid off or adjusted by supplying raw jute and it was further alleged that it was agreed that the parties should meet at a future date for discussing ways and means with notice to the said firm. Mr. Gupta submitted that in view of such allegations and also in view of the statements in the affidavit of Binode Kumar Saraf and Inderchand Saraf which are vague and devoid of any particulars it should be held that there are genuine and bona fide defences of the company to the alleged claim of the respondent. Mr. Gupta also made a comment that one of the parties to the said alleged tripartite agreement being Umasankar Saraf has not filed any affidavit in this application denying the alleged tripartite agreement of November, 1968, and December, 1970.;