TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 1254
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....udgment and order under appeal, the learned Company Court refused to admit the aforesaid four winding up petitions and relegated the petitioning creditor to the civil remedy available to the petitioning creditor. The learned Company Court directed that the period during which the winding up petitions had been pending in this Court may be excluded under Section 14 of the Limitation Act, 1963, in computing the period of limitation. The claims of the petitioning creditor against the respondent companies, which are on account of goods sold and delivered by the petitioning creditor to the respondent companies, are as follows : (i) Concast Global Ltd. Rs. 10,20,35,779.20 (ii) Concast Exim Ltd. Rs. 10,41,13,301.99 (iii) Concast Ispat Ltd.  ....
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....all the documents produced in support of supply of goods by Concast Bengal were forged and fabricated. Whether the documents were forged or fabricated could not be decided in summary winding-up proceedings under the Companies Act, 1956. Whether the documents were forged or fabricated would necessarily have to be decided upon evidence by instituting a regular suit in the appropriate civil court. The most important question in these appeals is, whether the respondent companies could claim adjustment of goods sold and delivered by Concast Bengal to the appellant petitioning creditor, assuming that Concast Bengal had actually supplied goods to the petitioning creditor, as claimed by the respondent companies. Ms. Chakraborty strenuously contended that there was no agreement between the appellant petitioning creditor and the respondent companies for adjustment of the price of goods supplied by the petitioning creditor to the respondent companies against the alleged dues of the petitioning creditor to Concast Bengal on account of supplies allegedly made by Concast Bengal to the petitioning creditor. To strengthen her argument, Ms. Chakraborty referred to invoices to show that there were....
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....el goods to Concast group which would be adjusted against the amount payable by R.A.V. Dravya [P] Ltd. to Concast Bengal Industries Ltd." It is the overall case of the respondent companies that there was an arrangement for adjustment of the consideration for supply of goods to the Concast group against the amount payable by the petitioning creditor for goods supplied by the Concast Bengal. The pleadings in affidavits are to be read in a whole. Pleadings cannot be truncated and read out of context. The intent of the pleadings is to be considered. Whether the proposal referred to in the affidavit in opposition fructified into an agreement, is also a matter which is to be decided on evidence. An agreement is not necessarily always in writing. Oral agreements, if proved, are enforceable in law. Section 171 of the Contract Act which specifically empowers bankers, factors, wharfingers, attorneys of High Court and policy brokers to retain as security for a general balance of account, any goods bailed to them, even in the absence of any contract, has no application to the instant case as no lien has been claimed in respect of goods by way of security. Moreover, the respondent companies cl....
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....resent unless he files a cross-suit of his own. When a plea in the nature of equitable set-off is raised it is not done as of right and the discretion lies with the court to entertain and allow such plea or not to do so." In Jitendra Kumar Khan (supra) the Hon'ble Supreme Court held that equitable set-off exists not only in cases of mutual debits and credits, but also where cross-demands arise out of the same transaction. The mutual debits and credits or cross-demands must have arisen out of the same transaction or be connected in the nature and circumstances. An equitable set-off is not to be allowed where protracted enquiry is needed for the determination of the sum due. For equitable set-off the debits and credits may arise out of the same transaction or be connected in the nature and circumstances. The crucial words are connected in the nature and circumstances. Ms. Noelle Banerjee, learned Advocate appearing on behalf of the respondent companies, argued that the Court was entitled to lift the corporate veil to find out the true nature of the transactions. In support of her contention she cited the following judgements: " I) New Horizon Limited and Another Vs. Union of Indi....