ASHIS KUMAR CHAKRABORTY,J. - (1.) This is an application under section 433(e) of the Companies Act, 1956 (in short "the Act of 1956") for winding up of Impex Ferro Tech Limited (hereinafter referred to as "the company") on the ground that the company is unable to pay its debts.
(2.) According to the petitioner, in terms of the various purchase orders issued by the company between April, 2013 and July, 2015, it supplied coal to the company. Against the total quantity of coal supplied the petitioner raised various invoices upon the company which were received by the latter. The company made payment of certain invoices and sent an account confirmation statement (hereinafter referred to as "the said account confirmation") to the petitioner admitting its outstanding principal dues to the petitioner for Rs. 1,74,65,867/-. However, in spite of requests of the petitioner the company did not pay said amount. By a notice dated March 15, 2016 issued under Section 434 of the Act of 1956 the petitioner called upon the company to pay the outstanding amount of Rs. 1,74,65,867/- as admitted by itself in the said account confirmation. The company received the said notice dated March 15, 2016 but neither did it reply to the same, nor made did it payment to the petitioner. Thus, the petitioner filed the present application for winding up of the company.
(3.) The company filed its affidavit-in-opposition to this application. alleging that by various letters between February 17, 2012 and May 22, 2013 it informed the petitioner of defective supply as also short supply of coal. In this connection, the company disclosed the letters dated February 17, 2012, May 08, 2012, June 30, 2012, August 28, 2012, November 29, 2012, January 28, 2013, March 28, 2013 and May 22, 2013 addressed to the petitioner. It further alleged that the said account confirmation has been prepared by an officer of the company who was not conversant with the details and the said document does not include the deduction to which company is entitled on account of delay in supply of goods under the purchase orders. Further, since at the relevant time the staff of the company had issued en masse resignation, the statutory notice dated March 15, 2016 issued by the petitioner could not be placed before the persons responsible to deal with the same and the company could not reply to the said notice. The company also alleged that it is entitled to receive Rs. 2,86,00,000/-, together with interest from the petitioner due to production loss suffered for 2 days because of delayed supply of coal.;