I.P.MUKERJI J. - (1.) THIS winding up application is pending in the file of this Court from 1993. Nineteen years is a very long time. But the fact remains that the dispute between the parties could not be resolved by this Court. The application was admitted by a learned Judge of this Court on 6th October, 1999. An appeal was preferred by the company. The Appeal court by its order dated 15th November, 1999 remanded the matter to the trial court. On 18th June, 2002, the learned trial Judge hearing the matter accepted the submission on behalf of the company to furnish security for the claim and relegated the petitioner to suit. An appeal was preferred by the petitioner. The Appeal court by a judgment and order dated 2nd April, 2003 remanded the matter back to the trial court. It is in these circumstances that this application was heard by me. The winding up application has been preferred on a claim of Rs. 8,74,300/- being the principal sum due on account of allegedly two outstanding bills of the petitioner in respect of supply of steel wires made by them to the company between 7th February, 1991 and 18th January, 1992. The claim on account of non-furnishing sales tax declaration forms by the company was Rs.2,70,092.45/-. The price was Rs.67,52,311.32/-. There is no dispute that the company paid Rs.58,77,995.88/-.
(2.) THE petitioner sent out two Section 434 notices. The first was dated 10th October, 1992. The company did not reply to this notice. The Companies Act, 1956 makes it explicit, that if a winding up notice is not replied to, by the company, immediately a presumption of insolvency is drawn (See Section 434 (1) (a) of the Companies Act, 1956). Now, it is for the company to rebut this presumption. A second winding up notice was sent out by the petitioner. It was dated 26th March, 1993. This time the company replied by their letter dated 12th April, 1993. It said that it had made payment of Rs.58,77,995.88/-. This was the entire payment due and payable to the petitioner under the above transactions. The letter went on to say that the above sum was paid in full and final settlement of their claim. The petitioner replied by their letter dated 3rd May, 1993 regurgitating their case in the winding up notice. A statement of account was annexed with that letter stating how the amount became due. This was replied to by the company by its letter dated 28th May, 1993 taking the same stand. The supporting bills and receipts of goods by the company are annexed to the application. It is alleged in the Affidavit-in-Opposition that the bills and invoices are forged and brought into existence to establish a false claim. Secondly, the above payment was made in full and final satisfaction of the claim of the petitioner and nothing was due and payable by the company to them. Thirdly, I was shown the petitioner's letter dated 16th June, 1992 asking for confirmation of accounts from the company. In that letter it was said that about Rs.26 lakhs were due from the company. Hence there was discrepancy, according to the company. Now my findings. There was no reply to the first statutory notice. Hence, a presumption of insolvency can be drawn under Section 434 (1) (a) of the Companies Act, 1956. There is a discrepancy in the defence taken in the reply to the statutory notice and in the Affidavit-in-Opposition. In the reply to the statutory notice it was said that there was full and final satisfaction of the claim of the petitioner. If, there was full and final satisfaction of the claim of the petitioner, there was admission of supply. This is inconsistent with the defence in the Affidavit-in-Opposition that the bills and challans are forged which if substantiated would go to show that no supply was made. The petitioner has annexed the bills and challans to the petition which show supply of goods to the company. The company has been unable to challenge these documents. There is clear evidence of supply of steel wires of invoice amount Rs.67,52,311.32/-. Payment of Rs.58,77,995.88 /-was made by the Company. There is no evidence on record to prove that the petitioner was satisfied with this amount and gave up its claim for the balance. The reference to the letter of 16th June, 1992 was misleading. It referred to the outstanding as on 31st March, 1992 as being Rs.25,83,671.32/-. The statement of accounts attached to that letter shows substantial payments made by the company between 5th May, 1992 and 19th June, 1992, so as to bring down the outstanding to the principal sum claimed. Hence, there was no discrepancy. Therefore, to my mind for all these reasons the company has no defence to the claim of the petitioning creditor. I hope that now, after nineteen years, the petitioner will get relief. The winding up application is admitted for the sum of Rs.8,74,000/- and Rs.2,70,092.45/-. This sum of Rs.11,44,392.45 will carry interest @ 10% per annum simple interest and not 24% per annum simple interest as claimed, from 19th January, 1992 till the date of this order. It will carry further post order interest @ 12% per annum simple interest till realization. This is the admitted claim of the petitioner. Let this application be advertised once in "The Telegraph" and once in "Anandabazar Patrika" within four weeks from date. I make this application returnable on 12th October, 2012. Let the advertisements not be published for two weeks from date, to enable the Company to take steps as they may be advised. Urgent certified photocopy of this judgment/ order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.;