ASHIS KUMAR CHAKRABORTY,J. - (1.) In this application the petitioner has prayed for winding-up of M/s.R A A Arsalan Enterprise Pvt. Ltd. (hereinafter referred to as the "the company") on the ground that the company is commercially insolvent and unable to pay its debts.
(2.) In the application it is the case of the petitioner that in terms of an oral agreement between the parties in between April 1, 2011 till March 27, 2015 the petitioner supplied various quantities of basmati rice to the company. The petitioner raised various bills upon the respondent and the same were accepted by the company without any objection. According to the petitioner, at the time of delivery of various quantities of basmati rice as per the oral instruction of the petitioner, it obtained the relevant challans being signed by the representative of the company. It is further stated that although the company made payment of various bills raised by the petitioner but it defaulted in making payment of 38 number of bills issued by the petitioner between May 31, 2014 and September 1, 2014 amounting to Rs. 48,61,576/-. By a notice dated February 23, 2016 issued under section 434 of the Companies Act, 1956 (hereinafter referred to as the "Act of 1956") the petitioner called upon the company to pay the said sum of Rs. 48,61,576/- together with interest @18% per annum from the dates of the respective bills. The company neither replied to the said notice nor paid any portion of the said amount of Rs. 48,61,576/- to the petitioner. Thus, the petitioner filed this application for winding-up of the company.
(3.) It is submitted by the petitioner that after service of this application on the respondent, the latter served an affidavit affirmed by its Manager, Gulam Mustafi, alleging that the company had no transaction with the petitioner and it received no rice from the petitioner. However, by an order dated June 21, 2016 a learned Single Judge of this Court directed the company to file its affidavit-in-opposition to this application stating as to whether, it has ever made any payment to the petitioner or not as price of goods sold and delivered by the petitioner to the company in course of its usual business. Thereafter, the company has filed its affidavit-in-opposition to this application which was affirmed by the same Manager who had also affirmed the earlier affidavit served upon the petitioner. In its affidavit-in-opposition the company alleged that it purchased basmati rice from the petitioner till May 8, 2013 and against such purchase, it has made the full payment of Rs. 40 lakh to the petitioner. It was further alleged that after 2013 no dealing or transaction took place between the parties for supply of basmati rice. In its affidavit the company denied to have received any of the bills/invoices disclosed by the petitioner in support of its claim in the winding up application. It further alleged that the signatures appearing in the challans disclosed by the petitioner in its application do not bear the signature of any authorised person or employee of the company and the challans produced by the petitioner bear the signatures of fake persons having no relation with the company. According to the company, the petitioner has not disclosed any document in the petition showing any admission of the company to the claim of the petitioner and the company having failed to pay such admitted claim. In its affidavit in reply, the petitioner reiterated the case made out by itself in the petition and disclosed copies of certain challans and bills pertaining to the previous years, for which company has made payment, bearing the signatures of the persons, who had signed the challans disclosed in the application in support of the claim of Rs. 48,61,576/-.;