TaxTMI 
TaxTMI 
2013 (2) TMI 339
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....uring the pendency of the present petition were not successful. 3. This Court has heard the submissions of Mr. Tarun Gupta, learned counsel for the Petitioner and has perused the documents placed on record. The reply filed by the Respondent has been considered. 4. The facts in brief are that the Petitioner, a company registered in Hong Kong was supplying to the Respondent computer peripherals and digital cameras. The practice between the parties was that part payments were allowed by the Petitioner to be made by the Respondent. The payments were permitted on D/A basis within 90 days from the date of bill of lading. These transactions commenced from November 2003 onwards. A copy of the bill of lading dated 5th November 2003 and the inv....
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....e returned. Consequently on 2nd November 2004 a notice was sent by the Petitioner to the Respondent as well as its various Directors setting out the details of the transactions and the outstanding amount. It is stated by the Petitioner that till that stage there was no protest lodged by the Respondent regarding the quality of the goods supplied. However, in reply to the notice an unsubstantiated plea was raised by the Respondent about the goods supplied by the Petitioner being defective. Further, a plea of warranty for supplies was raised even though no such warranty had been furnished. 7. In the above circumstances, the present winding up petition was filed under Section 433 (e) of the Act on 26th April 2005. While directing notice t....
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....tronic equipments. It is further acknowledged that with effect from April 2003 supplies were made by both Nitin International Limited, (the Petitioner in Co. Petition No. 149 of 2005) and Win Jing Industry (H.K.) (the Petitioner in the companion petition Co. Petition No. 150 of 2005). With a view to countering the Petitioner's case that there was no warranty, the Respondent has annexed with the reply copies of certain cartons in which the goods were purportedly sent. The Petitioner has, however, pointed out in its rejoinder that the cartons of which photocopies have been filed were not those in which the goods in question were dispatched but the Respondent's own cartons. 11. In para 3 (v) of the reply it is stated as under: "3(v) The ....
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....emporaneously with the receipt of supplies from the Petitioner. Such defence appears to have been taken for the first time in the reply to the legal notice sent by the Petitioner to the Respondent. 13. In para 3 (vii) of the counter affidavit the Respondent states that the Director had himself suggested that the goods supplied by the Petitioner to the Respondent be sold to M/s. Himalayan Time (P) Limited. This is denied by the Petitioner who points out that the letter dated 31st March 2005 purportedly written by M/s. Himalayan Time (P) Limited is in fact addressed to the Respondent. 14. In para 3 (viii) of the counter affidavit the Respondent has purportedly quantified the losses suffered by it on account of supply of defective/low qu....
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....ly filed by the creditor seeking such appointment either along with the winding up petition or thereafter. It was further observed that the learned Company Judge had not, in terms of the requirement of Section 450 (2) of the Act read with Rule 106 of the Companies (Court) Rules, 1959 ('Rules') given any 'special reasons' for dispensing with the requirement of issuing notice to the Respondent prior to the appointment of the PL. In the circumstances, the Court set aside the order under challenge only to the extent of the appointment of the PL. 18. Turning to the present case, it is seen that along with the main petition, the Petitioner filed Co. Application No. 590 of 2005 seeking the appointment of a PL. At the hearing on 22nd November 20....
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....e Respondent. The position remained unchanged even after lunch when the petition continued to be heard. In the considered view of this Court, these are sufficient 'special reasons' for the Court to dispense with notice to the Respondent prior to the appointment of the PL in terms of Section 450(2) of the Act read with Rule 106(1) of the Rules. In addition, the Court would like to refer to Section 443 (1)(d) read with Rule 9 of the Rules which permits the Court to pass any order to secure the ends of justice. 20. In the considered view of this Court, in the absence of Respondent denying its liability which is reflected in its audited balance sheet as on 31st March 2006, the entry in the books of accounts of the Respondent that the aforeme....