Ashis Kumar Chakraborty, J. - (1.) In this application, under Section 433(e) of the Companies Act, 1956 (in short, "the Act of 1956") the petitioner has prayed for winding up of the company namely, Manoj Kr. Anil Kr. Engineering Pvt. Ltd. (hereinafter referred to as the "the Company") on the ground of commercial insolvency.
(2.) The petitioner is engaged in the business of supply H.R. Coils, H.R. Plates and other steel materials. In between July, 2012 and November, 2012 the company placed various verbal orders on the petitioner for supply of H.R. Coils and H.R. Plates (hereinafter referred to as "the said goods") and the petitioner sold and supplied various quantities of said goods to the company. The petitioner issued five invoices, being No. HSC/60 dated 6th July, 2012, No. HSC/101 dated 24th August, 2012, No. HSC/169 dated 17th October, 2012, No. HSC/181 dated 5th November, 2012 and No. HSC/194 dated 23rd November, 2012 to the company for a sum of Rs.43, 46, 245.00 on account of price of the said goods and Value Added Tax, at the rate of 4% of the price of the said goods. The said invoices together with the relevant challans forwarded by the petitioner were received by the company. In the application the petitioner has disclosed the copies of the said five invoices and the relevant challans. The petitioner raised the said invoices dated July 6, 2012, August 24, 2012, October 17, 2012, November 5, 2012 and November 23, 2012 upon the company for Rs.9,63,895/-, Rs.7,89,806/-, Rs.9,30,387/-, Rs.4,72,871/- and Rs.11,89,286/-, respectively. The particulars of the said invoices have also been mentioned in a schedule, being Annexure "B" to the application. The petitioner claims that it was agreed between the parties the payment of the said invoices would made by the company within 30 days from the date of receipt of each invoice, failing which the company was liable to pay interest for the period of delay at the rate of 18% per annum on the outstanding amounts. On October 5, 2012 the company paid Rs.9, 63,895/- to the petitioner on account of the invoice dated July 6, 2012. According to the petitioner, by two cheques dated June 14, 2013 and July 30, 2013 the company also paid Rs.4,00,000/- and Rs.3,89,806/- amounting to Rs.7,89,806/- towards the second invoice dated August 24, 2012. Thereafter, on July 24, 2013 the company made part payment of Rs.5, 00,000/- by RTGS in respect of the invoices dated October 14, 2012, November 5, 2012 and November 23, 2012. The petitioner claims that after giving credit of all the said payments made by the company, Rs.15, 92,544/- still remains due and payable by the company, together with agreed rate of interest thereon at the rate of 18 % per annum. The company, however, failed to pay the said outstanding dues of the petitioner. Thus, on August 14, 2015 the petitioner through its Advocate issued a notice under Section 434 of the Act of 1956, calling upon the company to make payment of the said outstanding amount of Rs.15, 92,544/- within 21 days from the date of receipt of the same. By its reply letter dated September 7, 2015 addressed to the Advocate of the petitioner, the company denied its liability to pay the said amount. The company alleged that the goods supplied by the petitioner were of inferior quality and by its letters dated September 1, 2012, October 10, 2012, October 20, 2012 and November 26, 2012 requested the petitioner to replace the material with upgraded quality. The company further alleged that despite repeated assurance that the goods would be replaced, the petitioner failed to take any step whatsoever. But, at the request of the petitioner that it is in urgent need of fund and on the assurance that the entire inferior quality of goods would be replaced, the company in good faith released Rs.4, 00,000/- to the petitioner in June, 2013. According to the company, since the petitioner failed to replace the inferior quality goods and by a letter dated June 13, 2013 it once again requested the petitioner to replace the inferior quality of goods. In the said letter the company further alleged that it was in urgent need of raw materials and under compelling circumstances they were constrained to use 20% of the goods supplied by the petitioner and, as such, on July 24, 2013 and July 30, 2013 they paid Rs.5, 00,000/- and Rs.3, 89,806/- to the petitioner towards price of 20% of the said goods. Since the petitioner failed to replace the inferior quality goods, the company assessed the value of 20% goods utilised by it and made further payment of Rs.5, 00,000/- to the petitioner on November 12, 2013. By a letter dated November 12, 2013 it informed the petitioner that no further payment in respect of the said goods will be made unless the petitioner replaced the same. In the said letter the company also mentioned the particulars of the payments made to the petitioner on June 13, 2013, July 24, 2013, November 12, 2013 and July 30, 2014 amounting to Rs. 17, 89,806.00/- and denied its liability to make any further payment. The company also enclosed the alleged letters dated September 1, 2012, October 20, 2012, November 26, 2012, December 10, 2012, June 13, 2013, July 27, 2013 and November 12, 2013 each bearing the seal in the name of the petitioner and the signature of a person. By a letter dated September 21, 2015 the petitioner through its Advocate replied to the said letter dated September 7, 2015. In the said letter the petitioner denied the allegations of the company in the said letter dated September 7, 2015 and alleged that the letters dated September 5, 2012, October 26, 2012, November 26, 2012, December 10, 2012, June 13, 2013, July 27, 2013 and November 12, 2013 attached to the said reply dated September 7, 2015 are manufactured and concocted. The petitioner alleged neither of the said purported letters was delivered to him and none of his representative gave any acknowledgment to such purported letters. Since the company did not make payment of the said sum of Rs.15, 92,544/- the petitioner filed the present winding up application against it.
(3.) The company has contested this application by filing its affidavit-in-opposition alleging that the goods supplied by the petitioner covered by the said invoice dated July 6, 2012 were in order and accordingly, it paid the entire invoice amount of Rs. 9, 63,895 to the petitioner. It is, however, alleged that since the goods supplied by the petitioner covered by the invoice dated August 24, 2012 were of inferior quality by a letter dated September 1, 2012 the company requested the petitioner to immediately replace the same with upgraded quality. In its affidavit the company has disclosed a copy of the letter dated September 1, 2012. The company urged has further alleged that even after receipt of the said letter dated September 1, 2012 the petitioner supplied inferior quality of goods and raised the said invoices dated October 17, 2012, November 5, 2012 and November 23, 2012. However, by the letters dated October 20, 2012, November 26, 2012 and December 10, 2012 the company requested the petitioner to replace the said materials with upgraded quality. The company has also disclosed the copies of the said letters dated October 20, 2012, November 26, 2012 and December 10, 2012. According to the company, by a letter dated June 13, 2013 it forwarded a cheque of Rs. 4, 00,000 to the petitioner as a good gesture and alleged that unless the inferior quality of goods are replaced the petitioner should be held responsible for the loss sustained by it. The company has further disclosed another letter dated July 27, 2013 to the petitioner forwarding therewith part payment of Rs. 8, 89,806 on account of 20 % of the goods supplied by the petitioner. By a further letter dated November 12, 2013 the company informed the petitioner of the payment of Rs. 5,00,000 through RTGS and that until the said goods of inferior quality is replaced, they will not make any further payment and that they shall also be constrained to take legal measure against the petitioner. The company has claimed that all the letters written by it, copies whereof have been disclosed along with the said reply letter dated September 7, 2015, have been received by the petitioner and the question of any of the said letters being manufactured cannot arise. In his affidavit in reply the petitioner has reiterated the allegations made in the application and asserted that the purported seal of Haryana Steel Corporation appearing in the socalled letters disclosed by the company are forged and are not the seal of Haryana Steel Corporation. He has further alleged that the purported signatures appearing on such letters on the seals are also forged signatures and the same are not signatures of any person known to him.;