ASHIM KUMAR BANERJEE, J. - (1.) ASHIM KUMAR BANERJEE, J. This winding up petition relates to a claim for goods sold and delivered. By a Purchase Order dated 27th March, 2001 the petitioner supplied goods to the company on different dates between May, 2001 and December, 2002. There had been part payments from time to time. Ultimately as on March, 2003 a sum of Rs. 81,28,795.24 became due and payable. By a letter dated 19th March, 2003 the company admitted a sum of Rs. 61 lakhs and odd and prayed for time till the end of June, 2003 to clear off the said dues. By the said letter the company also asked the petitioner to supply further equipment. From 19th March to 12th May, 2003 parties remained silent (at least from the pleadings it appears). On 12th May, 2003 the petitioner agreed to take the goods back to minimise the outstanding dues as according to the petitioner the company expressed their inability to make payment because of financial stringency. On 14th May, 2003 the petitioner again asked the company to clear the dues.
(2.) On August 4, 2003 the petitioner wrote to the company threatening them to take action to recover the money due to them. While sending the said letter to one of the directors of the company, the addresser, sent copy of the said letter to his subordinates with a direction to take steps by initiating action against the company by August 14, 2003. This portion of the instruction, however, was also printed on the letter which was sent to the company. The company being apprehensive of legal action being taken by the petitioner .immediately wrote a letter dated August 8, 2003 and raised for the first time various disputes with regard to the quantity and/or quality of the materials supplied by the petitioenr to them. It was categorically pointed out that no money was payable in view of such dispute. They also threatened to invoke arbitration clause incorporated in the purchase order by referring the dispute to the arbitrator. By a separate letter dated August 11, 2003 the company raised the dispute and asked the arbitrator to initiate proceedings. The petitioner on the other hand replied to the said letter of August 8, 2003 by their letter dated August 20, 2003 denying all allegations and served a statutory notice of demand on the company on August 22, 2003. Although the factum of last part payment was not pleaded anywhere in the pleadings on a query made by this court, Mr. Aninda Mitra, learned senior counsel, appearing for the company, on instruction, informed this court that last part payment was made for a sum of Rs. 10.24 lacs on July 3, 2003.
(3.) On April 6, 2004 the winding up petition was filed. The company filed their affidavit-in-opposition on August 6, 2004. Before the winding up petition was filed the arbitrator entered upon reference and both the parties participated at the arbitration. The company filed its statement of claim. The petitioner filed its counter-statement wherein they made a counterclaim for the identical amount which was claimed in the petition. The arbitration proceeding is still pending and awaiting its disposal before the arbitrator. In the affidavit-in-opposition the company took the identical stand as they took in their letter dated August 8, 2003. In addition they produced two letters dated May 7, 2003 and May 30, 2O03 appearing at pages 16 and 19 of the affidavit-in-opposition wherein they sought to raise disputes. The receipt of the said two letters were categorically denied in the affidavit-in-reply. To that the company could not offer any reasoable explanation as to how those two letters were served upon the petitioner.;