PINAKI CHANDRA GHOSE,J - (1.) THIS appeal is directed against a Judgment and/or order dated 26th March, 2009 whereby the Hon'ble Single Judge was pleased to hold as follows : 'Therefore, I find that the company is really unable to pay the dues as the cheques were dishonoured. There has been no payment admittedly thereof and as such criminal proceedings has been initiated. I hold that company is unable to pay the debts of the petitioning creditor to the extent of Rs.43, 09.848 being the amount covered by the said cheques. It is not possible for this court to adjudge pay ability of balance claim in the petition on account of interest without accurate accounting which is complex is nature. However, if the company pays this amount by eighteen equal monthly installments first of such installment shall be paid on or before 16th May 2009 and go on paying month by month on or before 16th of each succeeding month this petition will remain stayed permanently. In case of default in paying the first installment and the last installment or two intermediary installments the petition will stand admitted and in that case the petitioning-creditor shall make publication once in The Statesman an once in Sanmarg. Publication in Calcutta Gazette is dispensed with."
(2.) THE facts of the case briefly are as follows: The winding up petition was presented by the respondent against the appellant company claiming balance of price of goods sold and delivered by the respondent were remained unpaid. The respondent carried on and still carries on as a dealer of materials like pig iron, C.I. Scrap and other related materials. On diverse dates in the year 1997 the appellant company placed orders upon the respondent for supply of pig iron, C.I. Scrap etc. The respondent duly effected such supply during April 1997 and October 1997. The challans showing the delivery of such goods were also placed before the Trial Court and the respondent raised its bills for such supplies and the appellant from time to time had made part payments in respect thereof.
(3.) IT appears that such winding up petition was based on the claim of the respondent for a sum of Rs.36.13 lakhs as principal amount was outstanding on account of such supply. It further appears that the respondent relied on confirmation of accounts which is also annexed to the paper book as on 31st March. 1998 and 31st March, 1999.;