Sanjib Banerjee, J. - (1.) THE petitioner has sought winding up of the company upon the company's refusal to refund the advance made in pursuance of a purchase order which the company failed to execute. Three purchase orders were issued on 12 -12 -2003, by the petitioner on the company for supply of counter weight plates of divers specifications. According to the petitioner, a sum of Rs. 15,50,000 was paid by way of advance by the petitioner to the company in respect of the three purchase orders. The company supplied materials against two of the purchase orders. After adjusting the company's bills of Rs. 11,35,650 against the supplies made, the balance of the advance made remained refundable. A sum of Rs. 86,341 was thereafter paid by a cheque dated 13 -1 -2004. The petitioner has claimed the balance amount after giving credit to the company for the part payment of Rs. 86,341. The balance principal sum claimed is Rs. 3,28,044, though the figures Rs. 11,35,650, Rs. 3,28,044 and Rs. 86,341 do not add up to Rs. 15,50,000.
(2.) THE petitioner's first demand, relied upon in these proceedings, was by a letter issued by its advocate on 22 -3 -2005. In reply, it was contended on behalf of the company by its letter of 24 -4 -2005, that by letters dated 31 -7 -2004, and 18 -1 -2005, the company had reminded the petitioner that due to the petitioner not lifting the goods, the plates had to be 'remelted'. The company also claimed that in respect of transactions with the petitioner and its sister concern, U. K Construction, the company had allegedly suffered loss of Rs. 4,66,092 and that after giving credit of Rs. 3,28,044 to the petitioner, a sum of Rs. 1,38,048 remain due to the company. The petitioner responded by denying that any letter of 31 -7 -2004, or 18 -1 -2005, had been written by the company to the petitioner reminding the petitioner that on account of the goods not being lifted, the company had suffered any loss. The petitioner admitted receipt of two letters and claimed that by such letters the company had merely sought sales tax declaration forms. The statutory notice of 1 -8 -2005, reiterated the petitioner's claim and the company's reply of 16 -8 -2005, was a repetition of the stand earlier indicated.
(3.) THE company has relied on the two letters allegedly dated 31 -7 -2004, and 18 -1 -2005. The two letters relied upon are addressed to both U.K. Construction and Bapi Construction. It is necessary to notice the contents of the two letters. The first letter claims to be in response to the petitioner's letter of 5 -4 -2004. By the letter of 5 -4 -2004, appearing as annexure "D" to the affidavit -in -opposition, the petitioner had claimed that after adjusting a sum of Rs. 11,35,615 against supplies effected, a sum of Rs. 4,14,385 still remained with the company. The petitioner complained of the company's failure to supply the goods in terms of the third purchase order.;