Nadira Patherya, J. - (1.) IN this application a claim has been raised on account of transportation charges incurred by the petitioning creditor on behalf of the company. The case of the petitioning creditor is that for the period July, 2013, to 24 August, 2013, goods were transported by it on behalf of the company for which bills were raised. As no payment was made on 28 June, 2013 the month -wise outstanding freight bills was forwarded with request for payment. On 29 July, 2013, the company informed the petitioning creditor that the transportation job earlier carried on 'to be billed' basis was, since 2 July, 2013, carried on 'to pay' basis. As no payment was made by the consignees this mode of transportation, i.e., 'to pay' basis, was discontinued and all the bills were to be paid on 'to be billed' basis by the company. For non -payment of the said bills a statutory notice under section 433 of the 1956 Act was issued on 2 September, 2013, which though received by the company no reply has been given. In respect of some of the bills sums were withheld and, by the letter dated 17 July, 2013, the petitioning creditor sought for payment of the sums withheld. In spite of receipt of the said letter no reply has been given thereto.
(2.) THE basis of the bills is rates approved by the representatives of the company. This cannot be disputed in view of the electronic mails dated 23 November, 2013, 6 March, 2013, 16 March, 2013, 2 May, 2013 and 25 May, 2013, in respect whereof payments have been made, which rates had also been approved by the representatives of the company. Therefore, as payments have been made on the basis of the rates approved by the representatives of the company, for all the bills which have been raised and which remain unpaid there is no reason for non -payment as the rates have also been approved by the authorized representative of the company. Therefore, the company petition be admitted for the sums mentioned in the statutory notice and payments be directed. In opposing the said application, counsel for the company submits that the petitioning creditor was aware that the rate will be fixed by one Mr. D.P. Jajodia. This finds mention in the circular dated 23 November, 2009, relied on by the petitioning creditor. Since 2 July, 2013, the goods were transported on 'to pay' basis but the said mode of payment was altered according to the petitioning creditor as the consignee refused to make such payment. There was no communication from the consignee refusing to make payment and the deviation in the mode of payment is oral. The petitioning creditor in support of its case of the rates being approved by the authorized representatives of the company has pleaded in its reply that fixing of rate by Mr. D.P. Jajodia was not strictly insisted upon and that the same stood modified by the conduct of the parties. Mr. D.P. Jajodia and his family members fixed the rates and, therefore, there has been substantial compliance. This case varies from the case made in the petition. In fact, in the 2nd reply of the company given to the affidavit -in -reply filed by the petitioning creditor particulars have been sought with regard to the names of the company's authorized representative who approved the rate. By letter dated 15 January, 2014, a reply has been given to the queries sought by stating that the particulars will be evident from the pleading and its annexures. There is no dispute that the bills have been received but the amount payable is not admitted as the original transaction has not been proved and in view of inconsistencies, so also non -establishment of the approved rates this application merits no order. Oral evidence will be required to prove signatures of the authorized signatories. Triable issues have also been raised with regard to the rate approving authority, approval of rates, whether 'to pay' could be treated as 'to be billed' mode of payment and in the absence of segregation of the case with regard to 'to pay' mode and 'to be billed' mode bona fide disputes have arisen. The ledger account is also incomplete and is an account only in part. It starts with an outstanding balance without specifying each and every amount. Therefore, in the absence of proper account being disclosed from the ledger of the petitioning creditor in respect of the company, there can be no admission and, as bona fide disputes exist, no order need be passed.
(3.) RELIANCE is placed on Toronto Star Newspapers Ltd. v. Ontario, (2005) 7 SCC 41 and Juneja Chemical Industries (P) Ltd. v. Alam Tannery (P) Ltd. : (2007) 140 Comp Cas 833 (Cal.) for the proposition that unless the exact amount is quantified no winding up order can be passed. Reliance is placed on Bengal Flying Club Ltd. In re : (1966) 2 Comp L.J. 213 (Cal.) : (1967) 71 CWN 38 for the proposition that the case must be pleaded in the petition. In the instant case the case of the petitioning creditor emerges in the affidavit -in -reply, therefore, no case has been made out by the petitioning creditor. Reliance is also placed on SRC Steel (P) Ltd. v. Bharat Industrial Corporation Ltd. : (2005) 6 Comp L.J. 401 (Cal.) : (2005) 4 CHN 343.;