TaxTMI 
TaxTMI 
TaxTMI 
2014 (6) TMI 18
X X X X Extracts X X X X
X X X X Extracts X X X X
.... to be addressed in the present case is whether the defence raised by the respondent is bonafide or a sham defence. 3. Briefly stated, the facts are as under: - 3.1 The petitioner is in the business of manufacturing, trading and distribution of synthetic leather (Rexine). The said material is used by the respondent in manufacturing shoes. The petitioner has been supplying the said goods to the respondent since over two years and the business relations amongst the parties are stated to have been cordial. The only complaint that the petitioner had was regarding minor delays in payment of the invoices. However, there is no dispute that the payments, for the goods delivered in the p....
X X X X Extracts X X X X
X X X X Extracts X X X X
...., the respondent alluded that the goods supplied by the petitioner had certain defects which required to be addressed. The said letter was immediately responded to by the petitioner by a letter dated 30.01.2013 and the allegation that there were any defects which had been pointed out earlier was stoutly disputed. The petitioner also exercised its right to curtail the credit period and called upon the respondent to immediately discharge the entire payment against the pending invoices. No further communication was issued by the respondent in this respect thereafter. 3.5 Given the fact that the payments due had not been effected by the respondent, the petitioner was constrained to issue a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ve supplied the goods as per specifications and tested in their laboratory before the dispatch of goods. But the Manufacturers advise buyers to test the material as per their satisfaction before usage because the Manufacturers do not undertake any kind of responsibility once the material is put to use OR after ten days from receipt of goods, whichever is earlier. xx xx xx xx xx xx 9. In respect of any complaint of whatsoever nature, that may be lodged in respect of the goods, the Buyers agree to first make payments in full before any action or settlement is negotiated. xx xx xx xx xx xx 11. The Buyer shall pay ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d that the goods supplied by the petitioner were defective. The learned counsel for the respondent has also pointed out certain photographs which, according to the petitioner, indicate unused goods of the petitioner lying at the factory premises as well as the stock of defective shoes. It is submitted on behalf of the respondent that on account of the complaints received, credit notes were issued to its customers and their respective accounts duly reflect the same. 8. I have heard the learned counsel for the parties. 9. The only aspect that is required to be considered in the present proceedings is whether the defence raised by the respondent is a sham defence. It is trite law that winding up proceedings cannot be preferred in order to pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at in terms of clause 6 of terms and conditions of the contract any complaint with respect to the goods could only be made within 10 days of the receipt of goods. 10. Although, the respondent has filed photograph of goods supplied which is contended to be defective, there is no communication on record which indicates that the respondent ever attempted to return the said goods. 11. It is also material to note that the notice issued under Section 434 (1) (a) of the Act had elicited no response and even at that stage, the respondent had not crystallized any issue. 12. In the given circumstances, I am in no doubt that the present defence raised by the respondent is spurious and created for the purposes of resisting the present petition. 13.....