Kalyan Jyoti Sengupta, J. - (1.) The above company petition has been brought for liquidation of the company above named (hereinafter referred to as the said company) by the petitioner. The facts and circumstances which is sought to be established for the insolvency of the said company is briefly stated hereunder.
(2.) The petitioning-creditor being a manufacturer and dealer of materials like pig iron, Cl scrap and other related materials, on diverse dates in the year 1997, pursuant to the order placed by the above company sold and delivered a substantial quantity of various materials like pig iron, Cl scrap etc. on various terms and conditions. It therefore, raised bills on diverse dates in between 15th April, 1997 and 4th October, 1997. The goods so sold and delivered, were accepted by the said company without raising any demur and dispute and in token of acceptance from time to time made part payment on diverse dates in between April, 1997 and October, 1997. The price of goods sold and supplied and part payment made against thereof have been particularised in a statement of account and, after adjusting all the payments being made a sum of Rs. 38,38,750/- was and still is due and payable by the company to the petitioning-creditor as per the said statement of accounts. The aforesaid statement of accounts detailing particulars as above being annexures "C" & "D" to the petition were duly confirmed by the said company. According to the petitioning-creditor it is entitled to claim interest at the rate of 24 per cent per annum on over due payments, hence its aggregate claim is Rs. 43,09,848/-. Thereafter the said company in order to liquidate the aforesaid dues issued eight account payee cheques and handed over the same to the petitioning-creditor. However, the said cheques on being presented for clearance were dishonoured by non-payment, as such a proceeding under section 138 of the Negotiable Instruments Act has been initiated after dishonour of cheques and the said proceeding is still pending. Thereafter on or about 31st May, 2000 the petitioning-creditor served a statutory notice under section 434 subsection (4) of the Companies Act, 1956 calling upon the company to pay the said sum of Rs. 43,09,848/-. The said notice so attempted to be served came back with the postal endorsement "not claimed. Therefore, for abundant precaution notice was served at the factory of the company at Banaras Road, Kona, Howrah by registered post with acknowledgement due under postal receipt. The said second notice did not come back un-served rather the postal authority has certified the same having been delivered at the above mentioned address. The claim of the petitioner at present is Rs. 68,69,588/- which is calculated including interest at the aforesaid rate of 24 per cent per annum from 1st April, 1998 till 10th October 2000. In spite of notice, the said amount has neither been paid nor secured, hence the company has become unable to pay its debt.
(3.) In the affidavit-in-opposition the company has defended stating that there has been mutual transaction between two parties in which the petitioner used to supply the aforesaid materials as stated in the petition and at the same time the company used to sell and supply substantial quantity of pig iron, and on account thereof there has been substantial amount due and payable by the petitioning creditor to the company. It is also stated that the cheques spoken about, were issued earlier for advance payment as against the future sale and supply to be made by the petitioner, of the scrap materials not for part payment as alleged. It has been admitted in the affidavit-in-opposition that after giving all adjustments of the payment made mutually for the price of the goods sold and supplied by the company owes a sum of Rs. 5,000/- to the petitioning creditor. It has also been said that winding up petition is not maintainable as there has been suppression of fact as to the aforesaid reverse supply of the goods by the company and further there has been no lawful service of statutory notice.;