J.K.Biswas, J. - (1.) The sole respondent in this appeal, as petitioning-creditor, filed the Company Petition No.324 of 2001. It was filed under sections 433, 434 and 439 of the Companies Act, 1956. By the order dated 26th November 2001 the learned Company Judge admitted the said company petition for a sum of Rs. 10,36,353.83. Aggrieved by that order the company has preferred the present appeal.
(2.) The case made out in the respondent's said company petition was as follows: From the year 1985 the respondent had been supplying agro-chemical products to the appellant-company. The parties started maintaining mutual and open current accounts. The appellant-company used to make part payments of the outstanding bill amounts. Following the system, that came to be established between the parties over the years, by a letter dated 21st May 1997 the respondent sent to the appellant-company the statement of accounts showing an outstanding balance of Rs. 6,22,433.47 payable as on 31st March 1997 by the appellant-company to the respondent. In the same letter the respondent mentioned that on the appellant-company's failure to confirm the correctness of the enclosed statement of accounts within seven days from the date of receipt thereof, it would be presumed that the appellant-company had nothing to say against the said statement of accounts. That letter dated 21st May 1997 was received by the appellant-company under its seal and signature. By similar letters dated 18th June 1998, 7th April 1999, and 6th May 2000 the respondent sought confirmation from the appellant-company of the outstanding balances of Rs. 8,03,658.47, as on 31st March 1998; Rs. 8,42,227.47, as on 31st March 1999, and Rs. 10,16,233.83, as on 31st March 2000 respectively. In all those letters it was mentioned that on the appellant-company's failure to dispute the correctness of the statement of accounts, they would be presumed to be correct. All those letters were received by the appellant-company by putting its seal and signature. None of the said four letters were replied to by the appellant-company,. As on 31st March 1997 the appellant-company was liable to pay Rs. 6,223,433.47, and thereafter during the period from the financial year 1997-98 to the financial year 2000-01 the respondent supplied to the appellant-company goods worth Rs. 14,96,420.36; and as against said supply, from time to time, the appellant-company paid Rs. 10,82,500.00. In the circumstances as on 31st March 2001 the appellant-company was liable to pay a sum of Rs,10,36,353.83 to the respondent. As in spite of repeated demands the appellant-company had not made the payment, the respondent through his learned advocate served the statutory notice dated 27th April 2001 on the appellant-company under sections 433, 434 and 439 of the Companies Act, 1956.
(3.) By the advocate's letter dated 22nd May 2001 the appellant-company replied to said statutory notice. The appellant-company's reply was : The goods supplied by the respondent were of inferior quality, and as a result, the appellant-company had suffered immense loss. In the joint meeting held between the appellant-company and the respondent, decision had been taken to make joint inspection of the tea garden for ascertaining the actual loss and settling the matter amicably. The respondent on some pretext or the other had backed out of said decision. Particulars of the bills and payments mentioned in the statutory notice did not tally with the appellant-company's accounts. The respondent was liable to pay compensation assessed at Rs. 40 lakhs. The respondent was not entitled to get any payment from the appellant-company; and he was at liberty to initiate legal proceedings.;