- (1.) These two appeals would relate to an order of refusal to admit two winding up petitions arising out of balance price of goods sold and delivered by the appellants to the respondent. The facts would depict, the respondent-company permitted M/s. Expo Minerals P. Ltd., to run their factory for a limited period. The said Expo Minerals handed over the factory back to the respondent on May 13, 2010. The subject supply would relate to coal supplied between the period April 4, 2010 and April 14, 2010. The appellant would allege, they supplied coal to the respondent whereas the respondents would deny the same. The respondent would claim, they had a linkage with South India Coalfields Ltd. They never had any occasion to purchase coal from any private party, far to speak of the appellants. Both these petitions would raise a claim of about Rs. 1.5 crore. However, the petitioners in these matters are different although they belong to the same group. Hence, both the winding up petitions were heard together and disposed of by a common judgment and order. The learned single judge by judgment and order dated September 16, 2013--since Grezual Associates P. Ltd. v. SMJ Eximp Ltd., 2014 187 CompCas 121, declined to admit the winding up petitions. The judgment would appear from pages 285-292 of the paper book. Hence these appeals at the instance of the petitioning-creditors.
(2.) Mr. Jayanta Mitra, learned senior counsel appearing in support of the appeals being assisted by Mr. M.C. Ghosh, learned counsel, would take us to the pleadings being winding up petitions and the affidavits-in-opposition. Mr. Mitra would contend, when a statutory notice of demand was served upon the company, it was their obligation to react to the said notice. The company deliberately did not reply to the said notice of demand that would raise a presumption of insolvency in accordance with the provisions of section 434 of the Companies Act, 1956, making the winding up petition maintainable. Mr. Mitra would further contend, the so-called defence that the company raised in their affidavit-in-opposition was nothing but an afterthought and in any event, there are discrepancies that would be apparent from the affidavit-in-opposition. Mr. Mitra would draw our attention to the statements made on behalf of the company where the company denied having signed the confirmation of accounts and in the same breath admitted to have been initialed by one Abhimunna Shaw. We find from the affidavit, the company denied the existence of the confirmation of accounts. They would contend, the seal appearing on the said document was not the seal of the company. The initial appearing therein would appear to be of Abhimunnu Shaw who denied having signed the same by filing an affidavit appearing at page 121 of the paper book. Mr. Mitra would make comment on such pleadings. He would refer to the earlier paragraphs where the company claimed to have 380 employees. According to him, out of 380 employees if the company could identify the initial of Abhimunnu mere denial on the part of Abhimunnu would not absolve their responsibility.
(3.) On the invoice Mr. Mitra would contend, both the invoices were accompanied by various road challans giving details of the truck that carried the coal that would prove the supply. He would also draw attention to a notice of demand that the company raised on Expo Mineral during pendency of the winding up proceeding wherein the company once again cautioned the Expo Mineral, in case they would not settle the issue, the company would admit the claim and would realise such claim amount ultimately from Expo Minerals. Mr. Mitra would contend, had it not been a genuine claim, the company would not have written such letter. He would lastly submit, in case the learned judge was not impressed with the facts and circumstances, he should have directed security to be furnished as the facts would deserve such order. He would rely upon the following cases in support of his contention: : N. Desai Papers P. Ltd. v. Computer Skill Ltd, 2012 171 CompCas 158 Plasitum 12, 16, 17 and 23. : K.T.S. (Singapore) Plc. Ltd. v. Associated Forest Products P. Ltd, 1996 85 CompCas 190 : Sical-cwt Distriparks Ltd. v. Besser Concrete Systems Ltd, 2010 155 CompCas 242;