Sanjib Banerjee, J. - (1.) THE company throws a preliminary challenge to the creditor's application for winding up being received. The statutory notice, the company says, was not issued to its registered office and, thus, the legal fiction in Section 434(1)(a)of the Companies Act, 1956, would not work in favour of the petitioner. The company also makes out a case in defence of the claim and urges that in the unlikely event of the creditor's petition being found maintainable, it should not be admitted by virtue of the substantial defence that the company sets up.
(2.) THE petitioner claims a sum of euro 3916.47 to be due from the company and suggests that the company's reluctance to pay the Indian equivalent thereof despite receipt of the statutory notice warrants this petition being received and the company being ultimately sent into liquidation. The petitioner is incorporated in Singapore and claims to be part of the SKF group of concerns, headquarters in Sweden but having substantial operations in the manufacture and supply of bearings in India. The petitioner relies on an agreement of February 14, 2003, that was entered into on behalf of the SKF concerns through SKF Bearings India Ltd. with the company for supply and import of SKF products. The petitioner has relied on three invoices, all of December, 2003 for euro 1153.52, euro 2309.69 and euro 453.26 for a combined claim that translates to a little over Rs. 2.20 lakhs at the present rate of exchange. The statutory notice of February 15, 2005, was addressed to the company at its Marshall House address in Calcutta but the room or office number was indicated as 407. In the notice and the cause title to the petition, the registered office of the company has been indicated to be at 407, Marshall House, 25, Strand Road, Kolkata -700 001. The petitioner relied on the agreement of February 14, 2003, in the statutory notice and claimed that it exported goods to the company thereunder and that a principal sum of euro 3916.47 remained due. The company responded by a letter of March 7, 2005. The company's response was to two SKF entities that had issued separate notices through the same advocate claiming from the company. It is necessary to see how the company's advocates described their clients in the reply of March 7, 2005: Our clients: (1) Premier (India) Bearings Ltd. 407, Marshal House, 25, Strand Road, Kolkata -700 001. 2) Hitech Bearings P. Ltd. 407, Marshal House, 25, Strand Road, Kolkata -700 001. Such reply while dealing with the present petitioner's claim had this to say: With reference to your letters written to Hitech Bearings P. Ltd. on instruction of S.K.F. South East Asia and Pacific Pte Ltd., Singapore, our clients deny that an amount of euro 5018.24 being an aggregate of the principal amount of euro 3916.47 and interest at 2 per cent, per month. Our clients state that in view of what has been stated herein above the question of making payment to your clients an amount of euro 5018.24 being an aggregate of the principal amount of euro 3916.47 and interest at 2 per cent, per month amounting to euro 1101.77 as from the due date until February 15, 2005 and further interest at 2 per cent, on the principal amount of euro 3916.47 from February 15, 2005, till payment and/or realization as wrongfully claimed in your purported notice under Section 434 of the Companies Act, 1956, or any other amount does not and cannot arise.
(3.) IN addition to the two paragraphs dealing with the present petitioner's specific claim, the company referred to Civil Suit No. 101 of 2004 instituted by Premier India Bearings Ltd. against SKF Bearings India Ltd. on the Original Side of this Court where the associate of the company had claimed on account of alleged loss and damage that it had suffered. The underlying theme of the company's response, one that was carried later in the affidavits filed by it in these proceedings, was that there was an arrangement between two groups and that disputes had arisen following which the company's group had instituted proceedings against the petitioner's group. The company warned in its reply, and cautions in course of final hearing, that it would be unwise to isolate claims of some of the entities to found individual proceedings thereon and the entirety of the matter had to be dealt with as a composite claim and counter -claim.;