2014 (1) TMI 1820

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....s, the respondent-company requested the petitioner to supply the material. From the end of July 2011, the petitioner started supplying the material to the respondent-company. In a ledger account maintained in the name of the respondent-company, the sales were debited and the payments received were credited. The material was delivered at the factory of the respondent-company at Baddi, Solan District, Himachal Pradesh. It is also seen from the ledger account that whenever any material was returned by the respondent-company, it was duly given credit in the ledger account. Such an instance, as shown in the ledger account, was the goods returned under GR No. 983656 on 19.10.2011, the value of which was Rs. 3,67,200/-. As on 1.2.2012, the total material supplied to the respondent-company was worth Rs. 85,28,000/- The payments received, including the credit for the goods returned, during this period amounted to Rs. 42,24,207/-. Thus the debit balance as on 01.02.2012, as per the ledger account was Rs. 43,03,793/-. The respondent-company made the last payment of Rs. 3,00,000/- on 16.1.2012. But thereafter no payments were made though the petitioner supplied goods and debited the value of t....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....11 and the value of the material amounting to Rs. 3,67,300/- was duly given credit to the respondent-company in its ledger account. Moreover, it is contended that the respondent-company was making payments from September, 2011 till 16.1.2012 without any protest or demur and had the material been defective, the respondent would not have made those payments. 4. Counsel for the respondent however contends that this is not a case of inability to pay on the part of the petitioner; it is a case of bona fide dispute regarding the quality of the material supplied by the petitioner. It is argued that the winding up petition is a counter-blast to the notice sent by the respondent on 7.3.2012 seeking recovery of Rs. 20 lakhs from the petitioner. Attention is drawn to the letter dated 14th October, 2011 written by the respondent to the petitioner on the subject "bad quality of PVC compound supplied" (Annexure R4-Colly). It is submitted that in this letter the respondent-company has drawn the attention of the petitioner that the "PVC Compound--Grey" supplied by the petitioner and received on 9.10.2011 was to be rejected on colour scheme and on quality parameters. The letter also says that th....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e petitioner merely mentions that the material supplied "shall be returned back to you with the debit note of all expenses incurred on the receipt". This letter refers to goods received by the respondent on 09.10.2011 at its factory. I find from the ledger account that on 08.10.2011, there is a debit of Rs. 3,76,992/- and a credit of Rs. 3,67,200/- on 19.10.2011 representing the value of goods returned as per GR No. 983656--Bill No. 057 dated 08.10.2011. Therefore, it can be taken that the reference in the letter dated 14.10.2011 is to the goods supplied by the petitioner under the above bill. This return of goods actually finds place in the ledger account on 19.10.2011. Apart from this there is no other credit in the ledger account for goods returned. The respondent also does not have any proof or evidence to that effect. The office memo dated 03.02.2012 is an internal communication in the factory of the respondent; it merely cautions its purchase department head that the goods have to be checked physically for any defects. This does not prove that the goods supplied by the petitioner were defective, though it refers to the goods supplied by the petitioner. If the respondent was s....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....o the respondent (Annexure R-3) is a letter in which Areva has cancelled the orders placed on the respondent for certain projects based on the progress of the orders till then and various rejections which took place during the inspections. I am unable to understand how this letter pins down the liability for supplying defective material upon the petitioner. 7. It appears to me that the claim of the respondent that the material supplied by the petitioner other than the material supplied under bill No. 057 dated 08.10.2011, on account of defects therein, had caused huge loss to the respondent, the responsibility for which should be taken by the petitioner, is clearly an afterthought. The contention of the respondent that the legal notice issued by the petitioner was a counter blast to the legal notice sent by the respondent on 07.03.2012 seeking recovery of Rs. 20,00,000/- from the petitioner is not acceptable, since even according to the respondent, the notice dated 07.03.2012 could not be served on the petitioner and was returned with the noting "no such person at this address". It has been admitted so in para 8 of the counter filed by the respondent. If the notice dated 07.03.2....