Ashim Kumar Banerjee, J. - (1.) The petitioning creditor had done certain share transactions on behalf of the company under an agreement dated November 8, 2000 appearing at pages 15-16 of the winding up petition. Three bills were raised on February 8, 2001, February 12, 2001 and February 27, 2001, amounting to Rs. 1,94,342.25, Rs. 4,43,592.50 and Rs. 4,30,999.50 respectively aggregating to Rs. 10,68,934.25.
(2.) These bills remain outstanding. The petitioning creditor on the other hand was holding a sum of Rs. 3,04,511.10 on the part of the company. As the company did not make payment of the aforesaid three bills, they adjusted the said amount of Rs. 3,04,511.10 and claimed the balance sum of Rs. 7,64,423.15. Repeated letters/reminders were given on and from April 2, 2001, till December 9, 2002. Those letters remain unreplied. The petitioning creditor served a statutory notice of demand on May 7, 2003, through their advocate which was replied to by the company on May 23, 2003, appearing at pages 41 and 42 of the petition. For the first time in reply to this statutory notice of demand the company raised two disputes firstly, the first two bills were settled for a sum of Rs. 3,04,511.10 as identical amount was being held by the petitioning creditor on behalf of the company that stood adjusted against the first two bills. Secondly, the third bill amounting to Rs. 4,30,999.50 represents a consignment which was never received by the company. In the affidavit-in-opposition the company echoed their stand taken earlier in reply to this statutory notice of demand.
(3.) Mr. M. C. Ghosh learned Counsel appearing for the company while opposing the application for winding up submitted as follows : (i) Since for the self-same cause of action the petitioning creditor has filed a suit before this Court which is still pending the winding up proceeding being parallel proceeding should not continue. (ii) The claim of the petitioning creditor is barred by laws of limitation. (iii) Since the first two bills stood adjusted by way of full and final settlement there cannot be anything due and payable. (iv) Since the subject consignment pertaining to the third bill was not received by the company and the company seriously disputed the signature appearing at the said consignment note, the third bill is not payable.;