ASHIS KUMAR CHAKRABORTY,J. - (1.) In this application under sections 433,434 and 439 of the Companies Act, 1956 (in short "the Act of 1956") the petitioner has sought for winding up of the company for nonpayment of its dues.
(2.) The petitioner is the dealer of ITC Ltd. and is the supplier of diverse products manufactured by ITC Ltd. like, coated folding Box Board, Long Grain Cyber XL Premium Board etc. of different size and specification. The method of selling the material by the petitioner to its buyers is called as "E-1" sale under the taxing system of the sales tax where the petitioner is called as the 'Dealer', the buyer/customer is called the 'Consignee' and ITC Ltd. is called the 'Consignor'. As per the system of "E-1" sale the petitioner, as the dealer, upon orders placed by its buyer instructs ITC Ltd. the Consignor to supply the materials to the buyer, the consignee directly. The ITC Ltd. would accordingly, deliver and supply required materials directly to the customers of the petitioner as per their order. Thereafter, the petitioner would raise "E-1" sale bills on the buyer as per the norms and practice of the "E-1" sale system and would realise the payment thereof.
(3.) The company issued purchase orders upon the petitioner for obtaining supply of diverse quantity of materials, namely, coated folding Box Board, Long Grain Cyber XL Premium Board of different size and specification (hereinafter referred to as "the said materials"), inter alia, on the term that the company would pay the price of the materials sold within 45 days from the date of delivery or submission of the bills whichever is later. According to the petitioner, in between May 21, 2013 and January 15, 2015 pursuant to various orders placed by the company it caused supply of diverse quantity of the said materials manufactured by ITC Ltd. to the company. In the premises, from time to time, the petitioner raised its bills/invoices which were received and accepted by the company without any objection whatsoever. Although, the company made payment of the invoices raised by the petitioner on account of supplies made until May, 2014 but it defaulted to make payment of twelve bills/invoices dated between August 04, 2014 and January 15, 2015 for the total amount of Rs. 76,67,533/-. In the petition, the petitioner has disclosed the relevant purchased orders, invoice cum delivery challans issued by ITC Ltd., "E-1" sale invoices raised by it upon the company. Out of the said twelve invoices for the sum of Rs. 76,67,533/-, the company later on paid Rs. 82,354/- against the invoice dated August 04, 2014 leaving the outstanding balance of Rs. 75,85,179/- on account of eleven invoices dated between September 25, 2014 and January 15, 2014. Subsequently, on or about February 25, 2015 by a payment voucher dated March 31, 2015 the company forwarded a post dated cheque dated March 31, 2015 of Rs. 25 lakh in favour of the petitioner towards part payment of its dues. When the company, without clearing the outstanding payment, demanded further supply of materials by an electronic mail dated February 28, 2015 the petitioner informed the company of its inability to resume any further supply unless payment of the outstanding dues is made. According to the petitioner, since it refused to supply any further materials without payment of its entire outstanding dues the company by its electronic mail dated March 28, 2015 made false allegations against the petitioner and requested the petitioner to return the said cheque dated March 31, 2015. Since the company had issued the said cheque for payment of its outstanding dues, the petitioner deposited the same on the due date but the same was returned by its banker with a remark "exceeds arrangement". The petitioner has instituted a complaint case under Section 138/141 of the Negotiable Instrument Act against the company before the ACJM Court at Bidhannagar, Kolkata which is pending. The petitioner has also claimed that the company even did not furnish the requisite sales-tax declaration forms (C-Forms) against the supplies made by the petitioner and, as such, the company is liable to pay Rs. 7,44,026.55/- to the petitioner in lieu of sales tax declaration forms, together with interest thereon at the rate of 18%, per annum. After giving credit for the sums paid, as on June 15, 2015 Rs. 90,41,593/- fell outstanding from the company to the petitioner on account of the principal amount of materials sold and delivered and on account of non-furnishing of CForm, together with interest thereon at the rate of 18 per cent, per annum. On April 9, 2015 the petitioner issued a notice under Section 434 of the Act of 1956 upon the company. By a letter dated April 29, 2015 the company, through their advocate, replied to the said statutory notice alleging that the materials supplied by the petitioner were not as per the orders placed by it and the invoices raised by the petitioner between May 21, 2013 and January 15, 2018 were reverted/adjusted by way of debit notes raised by the company due to the defective/unacceptable materials supplied by the petitioner. The company further alleged that as the materials delivered were required to be returned the question of paying sales tax or C-Form does not arise. It also alleged to have filed a civil suit before learned Civil Judge (Senior Division) at Sealdah, being Title Suit No. 53 of 2015, inter alia, for a declaration that the petitioner herein has no right or authority to claim and realise any amount for the materials as per the invoices mentioned in the schedule to the plaint ignoring the debit notes. According to the petitioner, the allegations made by the company in its letter dated April 19, 2015 are baseless and frivolous allegations, even the suit filed by the company is thoroughly misconceived, speculative, mala fide and afterthought and the company has failed to raise any bona fide defence to its claim in the application.;