ASHIS KUMAR CHAKRABORTY, J. - (1.) THE subject matter of challenge in these appeals is an order dated May 13, 2014 passed by a learned Single Judge admitting an application for winding up of the company one namely, SSS Loha Marketing Private Limited for Rs. 3,00,06,655/ -.
(2.) THE appeal being APO 452 of 2014 is at the instance of the company challenging the order admitting the winding up application. The other appeal being APO 302 of 2014 is on behalf of the petitioning creditor who claims that the learned Single Judge ought to have admitted the winding up application for Rs. 4,00,06,655.52/ - as claimed in the application. We shall first deal with the appeal of the APO 452 of 2014.
(3.) ACCORDING to the appellant company, it has no outstanding dues to the respondent and the learned Single Judge erred in admitting the winding up petition. For the purpose of the disposal of this appeal and as also the cross -objection we first set out the undisputed facts of this case. The respondent in the appeal (APO 452) carries on business, inter alia, of factoring of receivables. The appellant company obtained supply of certain materials from Ramsarup Industries Ltd. (hereinafter referred to "as the borrower company"); The Borrower Company raised particular invoices on the appellant company for Rs. 4,00,06,655.52/ - on account of price of such materials. The borrower company was in immediate need of funds, they approached the respondent for availing of the factoring service, that is, factoring against receivables. An agreement dated August 21, 2009 for the factoring of receivables was entered into between the respondent and the said borrower company (hereinafter referred to as the "said factoring agreement") providing, inter alia, that the respondent would make immediate payment, on account of the said invoices raised on the appellant, to the borrower company, on behalf of the appellant company being the buyer of the said materials. The factoring agreement came into effect on September 21, 2009. By a letter dated November 19, 2009 the borrower company informed the appellant, the purchaser of the execution of the said factoring agreement and that it has received a sum of Rs. 4,00,06,655/ - from the respondent on account of specific outstanding twenty nine invoices raised on the appellant. The said letter irrevocably authorized the appellant company to make all payments, in respect of the said twenty nine invoices and future invoices directly to the respondent. By a letter dated November 19, 2009 addressed to the respondent,(at page 103 of Vol 1 of PB) the appellant confirmed the supply of materials from the borrower company and acknowledged and agreed to make payment, on account of the said twenty nine invoices directly to the respondent. Along with the said letter the appellant forwarded to the respondent a post dated cheque of Rs. 4,00,06,655.52/ - towards payment of the said twenty nine invoices raised by the borrower company. Subsequently, the respondent also factored other invoices raised by the borrower company on account of supply made to the appellant and a further sum of Rs 1,00,00,536/ - became payable by the appellant to the respondent.;