ARINDAM MUKHERJEE,J. - (1.) This is an application for winding up of the company by the name Good-Will Tea and Industries Limited (hereinafter referred to as the said company) filed under the provisions of Sections 433, 434 and 439 of the Companies Act, 1956 (hereinafter referred to as the said Act) on account of debt arising out of alleged unpaid price of goods (coal dust) sold and delivered by the petitioner to the said company. The winding up petition was filed on or about November 7, 2016 and directions for filing of affidavits were given on November 28, 2016.
(2.) The petitioning creditor carries on business as Coal Merchant under the name and style Radharani Enterprise as a sole proprietor thereof. The petitioning creditor says that he had been supplying coal dust to the said company at its Bhandiguri Tea Estate at Jalpaiguri. He alleges that as on March 31, 2015 a sum of Rs. 16,13, 879/- remained outstanding on account of price of coal dust supplied to the said company. At the assurance of the said company to pay the said outstanding sum with interest the petitioning creditor resumed further supplies and the said company also made subsequent payments from time to time. After giving adjustments to all payments received by the petitioning creditor from the said company after March 31, 2015 a principal sum of Rs. 16,26,453.50 p remained due and outstanding as on March 31, 2016. Since the said company did not pay any part and portion of such dues, the petitioning creditor through his advocate issued a statutory notice on July 23, 2016 claiming an aggregate sum of Rs. 16,26,453.50 p./- with interest @ 21%. The petitioning creditor further submits that the said company duly received such statutory notice but neither paid any part or portion thereof nor did it secure to the satisfaction of the petitioning creditor such sum. On the contrary the said company alleged that the petitioning creditor is not entitled to Rs. 16,13,879.50p said to be due on March 31, 2015 and the company is entitled to realize a sum of Rs. 25,34,708/- on account of overbilling and Rs. 8,66,917/- on account of damages by replying to the petitioner's statutory notice through its advocate's letter dated August 4, 2016. This resulted in filing of the said winding up application.
(3.) In reply to the winding up notice the company has raised the following issues to resist the petitioner's claim:- (i) The supply was of inferior quality for which the said company as suffered damages to the tune of Rs. 8,66,917/-. The company says that having regard to inferior quality of goods being supplied, the consumption of coal dust used in operating the boilers at the factory of the said company increased than its normal consumption resulting in such damages. (ii) The petitioning creditor had charged at a much higher rate than that prevailing in the market for the goods in question during the relevant time. Since the said company had made payment from time to time on the basis of the bills raised by the petitioning creditor at such inflated rate, the company had in effect made excess payment to the petitioning creditor. According to the said company, the petitioning creditor is liable to pay Rs. 25, 34, 708/- on account of excess billing and Rs. 8,66,917/- on account of damages. After adjusting Rs 16, 26, 453/- therefrom as claimed by the petitioning creditor, the petitioning creditor owe a sum of Rs. 8,98,225/- to the said company. ;