M.H.S. Ansari, J. - (1.) The instant appeal is directed against the order and judgment dated 5-1-1999 passed by the learned single judge of this Court in Company Petition No. 132 of 1998, whereby the winding up petition has been dismissed and the petitioning creditor, appellant herein, has been relegated to a suit.
(2.) The brief facts of the case are that the petitioning creditor supplied goods viz., balled tea cartoons pursuant to an order placed by the Company. According to the appellant, the company accepted and consumed the goods without any objection. The bills raised by the petitioning creditor were accepted by the Company and a part-payment of Rs. 1,65,000 was made by the Company on 24-2-1997 leaving a balance of Rs. 2,61,000. Interest calculated thereon at 18 per cent per annum simple from 1-3-1997 to 1-12-1997 aggregating to Rs. 31,320 was claimed by the petitioning creditor and in all a sum of Rs. 2,92,320 was demanded by its statutory notices issued under section 433 of the Companies Act, 1956 and thereafter, the winding up application was filed.
(3.) The defence of the Company interalia, is that the materials supplied by the petitioning creditor was defective besides, the delivery was made beyond time stipulated and consequently, the same could not be shipped in time and that a portion of the goods are lying unused and unutilised and inspite of Company's request, the petitioning creditor has not taken return of the same. The main trust of the defence, however, is that the goods supplied by the petitioning creditor were rejected by the foreign buyer, due intimation of which was given to the Company by letters dated 21-5-1996 and 14-8-1998.;