G CLARIDGE AND COMPANY LTD Vs. NAV BHARAT INVESTMENTS LTD

JUDGEMENT

(1.) This winding-up petition against the company named Messrs. Nav Bharat Investments Ltd. is for admission on the ground that the company is unable to pay its debts. The petitioners claim from the company a balance of Rs. 58,262.30 being the amount due in respect of the orders executed by the petitioners at the request of the company as per particulars given in the five bills (exhibits A collectively to the petition). The company made part payment aggregating to Rs. 9,500 and, according to the petitioners, it failed and neglected to pay the balance of Rs. 58,262.30. In respect circumstances, the petitioners, by their advocate's letter, dated 27th September, 1975, gave statutory notice under section 434(1)(a) of the Companies Act, 1956, calling upon the company to pay the said balance within three weeks.

(2.) In its reply dated 4th October, 1975, the company pointed out that by their letter, dated 29th August, 1973, they had given complete details of the dispute with a request that the petitioners should make the arrangements for a meeting, so that the dispute about the bills might be settled with them. It was also contended that the petitioners had agreed to this suggestion and their representative came with a promise that a meeting would be arranged between the two parties for settlement and that the petitioners were avoiding to have a meeting for the last two years. It was also stated that the company started making payment by instalments of Rs. 500 per month on the basis of an agreement between the petitioners and the company, that this was a provisional arrangement, and that the final arrangement would be made at the earliest possible time, but pending such final arrangement, the company of its own agreed to make a provisional payment of Rs. 500 per month which was agreed by the petitioners. The company also denied that it had admitted the liability of the amount of Rs. 62,762.30. Reference was also made to a letter, dated 29th August, 1973, in which it was pointed out that a sum of Rs. 5,000 paid to the petitioner had not been included in the statement of account. The company, however, admitted that the petitioners' representative, Mr. Billimoria, was calling on them from time to time and that the company had been making payments to him during that period. The company denied that it was unable to meet its liability and stated that they had shown eagerness to make settlement as stated in the previous correspondence and that they were ready to settle the matter ambicably.

(3.) In the affidavit-in-reply, it is contended that although the petitioners agreed to give delivery was not effected and the printing work was stopped. The company's clients were Tudors and their agents were Vision Advertising. One Mr. Prabhakar, a representative of the petitioners, put a proposal to Vision Advertising, the agents for Tudors, that they should pay the petitioners' bill directly, so that they may get considerable rebate and would also give copies of the bills. As the company undertakes the work on some margin, naturally there is some difference between the company's quotations to their clients and the petitioners' quotations to the company and, therefore, if the petitioners bills are given directly to the clients or if the arrangement between the company and the petitioners is disclosed to the company's clients, the company would be derived of all the margin and the company will not be benefited, but the company will also lose its clients. Though the said Prabhakar had assured that he would not reveal the rates to the company's clients, yet he did reveal them to their clients. It was further contended by the company that the company informed the petitioners by their letter dated 10th February, 1973, which was replied by the petitioners' letter dated 13th February, 1973, in which the petitioners apologised to the company for an misunderstanding or irritation caused to the company by the said Prabhakar. It was further alleged that the petitioners, right from the very beginning, were creating troubles for the company and that they had failed to deliver the job in time and, on the other hand, they started contacting the company's clients and were attempting to confirm future orders directly from them. It was next contended that because of the tactics of the petitioners, the company suffered heavy losses and, therefore, in order to clear the misunderstanding and for resolving the dispute between the petitioners and the company, a meeting was arranged in the office of the petitioners on 11th April, 1973, and then the affidavit further states as follows : "........ when it was decided that the bills will be settled that 50 percent, less viz., 50 per cent of Rs. 54,021.52 and out of that amount, the company has to pay half the amount, viz., Rs. 27,010.76. Out of that amount, Rs. 9,500 were paid and deducting that amount, a sum of Rs. 17,510.76 is due and payable by the company to the petitioners, and the company is ready and willing to pay the said amount by monthly instalments of Rs. 400."