TaxTMI 
TaxTMI 
2016 (4) TMI 434
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....d on the touchstone of aforementioned two parameters, i.e., whether the dispute raised by the defence is bonafide or not, much less the liability is disputed or not. In order to appreciate the aforementioned two questions posed, it would be apt to refer few facts. The case set up in the present petition seeking winding up of the respondent company is that the petitioner company is a creditor of the respondent company on account of the business dealings as per their balance sheet. It has been stated that the respondent company, vide Purchase Order bearing No.NLL/R.M./U02/086/2010-2011 dated 10.7.2010 (Annexure P-1) had placed an order with the petitioner company for supply of 3000 Kgs. @ Rs. 9500/- per unit (kg.) totalling to Rs. 2,85,00,000/- of Cefixime Trihydrate (for short "CT"). In pursuance to the order placed by the respondent company, the petitioner company supplied the requisite material against different invoices (Annexures P-2 to P-8), which are stated to have been received by the respondent company. The same are reflected in Para 6 of the petition. It has been further stated that the material supplied was sent to the respondent company through credit and the price ....
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.... (Annexure P-16), thus, the petitioner company never assured regarding the supply of the said material. It is in these circumstances, the company petition, aforementioned, was filed. Upon notice, the respondent company appeared and filed a detailed reply taking various preliminary objections, vis-a-vis maintainability of the petition under Sections 433(e), 434 and 439 of 1956 Act by stating therein that prior to filing of the winding up petition, the respondent company had duly notified the petitioner company way back on 28.9.2010 regarding the contractual breaches by the petitioner company and failure to honour the representations, warranties and commitments, resulting into causing of huge financial loss. It has also been stated that the petitioner company failed to comply with the legal notice (Annexure P-14) and in this regard, the respondent company filed a civil suit on 15.12.2011 (Annexure R-1) and the present petition is a counter blast to the legal notice and, thus, as per the settled law, winding up petition cannot be entertained where the alleged debt is disputed. It has also been stated that the petitioner company has withheld the factum of filing of the suit as the w....
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....its that it is a clear cut case of admitted liability and since the respondent company has failed to discharge the obligation, the defence raised is a malafide one, much less an after-thought and, therefore, the second rule is applicable and the judgment cited supra would be applicable and the company petition be ordered to be admitted. Mr.Atul V.Sood, learned counsel appearing on behalf of the respondent company submits that the defence raised in the present petition is a bonafide as it is a case of set-off, inasmuch as that the respondent company vide e-mail dated 17.8.2010 issued a Purchase Order dated 16.8.2010 of 6 MT of CP @ Rs. 12,250/- per Kg., which was in pursuance to various correspondences exchanged between the parties starting from Page 226 of the paper book, the details of which are given herein under:- 1) On 27.7.2010, the petitioner sent an e-mail to the respondent company regarding the basic rate of CP at the rate of Rs. 12750/- per Kg.+ED 10.30%+CST 2% against form Rs. C' and delivery as per schedule and the payment to be made in 60 days; 2) Vide e-mail dated 27.7.2010, the petitioner company stated that it would not be possible for them to offer less....
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.... 9700/- Kg ++ & cefpodoxime @ Rs. 12500/- Kg++. Please confirm on the same. Regards, Renuka" 4) Vide e-mail dated 11.8.2010, the petitioner company expressed inability to supply of material in one go owing to the severe shortage of BF3 gas. For the sake of brevity, contents of the letter dated 11.8.2010 read thus:- "Chetan Gulati From: "sandeep"<[email protected]> To: "Chetan Gulati"<[email protected]> Cc: "Ms.Renuka"<[email protected].> Sent: Wednesday, August 11, 2010 9:59 AM Subject: Re: inquiry Dear Mr.Chetan Gulati, Due to severe shortage of BF3 gas, we are paying extra rate for supply to keep the production on. We can accept the rate of Rs. 12,500/- only for 3 MT. One MT August, One MT September & One MT October. Please confirm, Regards Sandeep Chawan" It is in these circumstances, the Purchase Order dated 18.8.2010, ibid, was placed. For the sake of brevity, contents of the Purchase Order dated 18.8.2010 read thus:- "Chetan Gulati From: "Chetan Gulati"<[email protected]> To "sandeep"<sandeep@heterodru....
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.... We hereby accept the order as per terms & conditions mentioned above. (Authorized Signatory) (Please sign with official seal and sent back by return fax) Thanks & Regards Chetan Gulati (Sr.Manager Purchase) Nectar Lifesciences Limited Corporate Office: SCO 38-39, Sector 9-D, Madhya Marg, Chandigarh 160 009 INDIA Mobile Tel# : +91 93562 87000 Tel# (Direct) : +91-172-3047720/5033535 Tel# (Board) : +91-172-3047777 Fax# : +91-172-3047755 URL : www.neclife.com E-Mail : [email protected]" (5) Vide e-mail dated 18.8.2010, the petitioner company had assured to give the details delivery schedule, but the company showed its ability to supply maximum 1 MT, though the respondent company needed minimum 2 MT per month and ultimately vide e-mail dated 30.8.2010, the petitioner company despatched the schedule for September. The contents of letters dated 18.8.2010 and 30.8.2010, ibid, read thus:- Letter dated 18.8.2010 From: "Renuka"<[email protected].> To: "Chetan Gulati"<[email protected]> "sandeep"<sandeep@he....
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....., [2014] 187 CompCas272 (Cal); 2) Kuoni Travel (India) Private Limited Versus Tecumseh Products India Private Limited, [2016] 194 CompCas164 (AP); 3) J.N.Roy Chowdhury (Traders) P.Ltd. Versus Jainti Enterprises, [1987] 61 CompCas504 (Cal); and 4) Garware Capital Markets Ltd. Versus Jaiswal Granites Ltd., [1998] 93 CompCas215 (AP); For the sake of brevity, Para 21 of judgment No.1, Paras 9 and 13 of judgment No.2 and Paras 26 and 32 of judgment No.3 are reproduced herein below:- Para No.21 of Judgment No.1 "It is undisputed that the transaction between the parties continued for several years. The agreement, provides the deposit of money in the bank account after deduction of the commission, taxes and other expenses. It is not an allegation of the petitioning-creditor that the Company has violated any of the terms and conditions embedded in the agreements. The termination came because of the change in the policy and it cannot be said at this stage that the remedy of the Company is not available in seeking the damages for illegal and wrongful termination. The Company has approached the Bombay High Court by filing the civil suit for recovery of money on account of da....
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....at the set-off or adjustment claimed by the respondent is not an after-thought and that it has been consistent in its stand in this regard much before the filing of the winding up petition." Paras 26 and 32 of Judgment No.3: "26. In our opinion, these are disputes which cannot be resolved on affidavits but in a regular action. On a consideration of all the facts and circumstances of the case, it cannot be said that the defence sought to be raised by the appellant in the instant case is frivolous or mala fide. In substance, the defence of the company appears to be that the said amount of Rs. 24,000 was not crystallised into a debt giving rise to an indebtedness of the company and further by reason of the respondent's stopping to place any further order or for closure of business without any notice in terms of the agreement, the appellant had suffered loss and damages. By reason of such breach, there was a prima facie case for the appellant's counter-claim. Therefore, in our opinion, it cannot be said that a such a claim is frivolous or made with an intention to defeat the claim of the respondent or without any merit. The respective cases as made out by the parties requ....
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....ut in the judgment (supra), there is no dispute that the respondent company can always set up a plea of set-off and adjustment. The present case is of a case of such kind where the respondent company at the initial stage, vide legal notice dated 31.10.2011 (Annexure P-13), as per Para 16, had adjusted/forfeited the amount to be paid to the petitioner company. The petitioner company did not disclose the factum of filing of the suit as the present company petition was filed on 22.2.2012 and notice was issued on 17.7.2013, whereas the suit had been filed on 19.12.2011. Copy of the suit has already been annexed as Annexure R-1. There is another aspect of the matter. After supplying the schedule as per the letter dated 30.10.2010 (supra), the petitioner company deviated from the agreed rate and sought amendment in the rate of Rs. 13,000/- per kg. vide letter dated 30.10.2010. For the sake of brevity, the contents of letter, aforementioned, read thus:- "Chetan Gulati From: "sandeep"<[email protected]> To: "Chetan Gulati"<[email protected]> Cc: " di ne s [email protected] >;"Ms.Renuka"<[email protected]> Sent: Monday, August 30, 2010 3:33 PM Subject....