TaxTMI 
TaxTMI 
2012 (8) TMI 1238
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....Section 434 of the Companies Act, 1956. 2 Submission is that the respondent company had placed various purchase orders between the period from 17.04.2007 to 10.06.2007 upon the petitioner for the supply of 386.140 metric tons of sponge iron lumps at Sinnar, Nasik; the same were accordingly supplied by the petitioner to the respondent company from time to time. The total value of the aforenoted goods was Rs. 62,22,401/-. The entire quantity of the aforenoted goods was supplied by the petitioner to the respondent which were received by the respondent pursuant to which a Form 'C' dated 07.03.2009 was also issued by the Central Sales Tax Department, Government of Maharashtra. 3 Submission of the petitioner company is that it had raised 25 inv....
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....etitioner had not taken back the defective goods; the petitioner had assured the respondent that the defective goods will be removed but inspite of this assurance, the goods were not lifted; Form 'C' was issued only because the goods were lying in the factory premises of the respondent; the petitioner is seeking to take benefit of this Form 'C'; he has wrongly relied upon this document to base the present petition. 7 Along with the reply the affidavit of the Commission Agent has also been filed. There are in fact two affidavits filed by the said Commission Agent. The first affidavit is dated 30.10.2010 and the second affidavit is dated 21.09.2011; submission being that in this affidavit also, the Commission Agent has disclosed that initial....
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....hers to support a submission that the issuance of 'C' form is a proof of the sale of the goods having being effected by the petitioner to the respondent and the goods have been accepted without a demur. Reliance has also been placed upon 2008 (105) DRJ 236 Paharpur 3 P (A division of M/s Paharpur Cooling Towers Limited) Vs. Dalmia Consumer Care Private Limited to support the submission that the defence set up by the respondent at this stage which was at the stage of filing of the reply to the winding up petition which defence is that the goods are defective and there admittedly being no written communication of this defect having been intimated by the respondent to the petitioner is clearly a moonshine and sham defence; it has been set up o....
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....ission being the 'C' form heavily relied upon by the petitioner although admittedly has been issued by the company but can at best be treated only as an acknowledgment of the goods received under the contract of the supply of goods and the price fixed to be paid for them; submission of the respondent being that the goods were defective and coupled with the fact that the Commission Agent has filed his affidavit supporting the stand of the respondent that the defective goods had been promised to be lifted by the petitioner clearly shows that a dispute has arisen on facts which cannot be answered in this petition. 14 Record has been perused. 15 The transaction between the parties is admitted. Admittedly goods had been supplied by the petitio....
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....oth to the petitioner as also to the Commission Agent but no such communication to the petitioner is on record. 17 There is no doubt that the affidavit of the Commission Agent has been placed on record. In fact there are two affidavits filed by the said Commission Agent. The first affidavit is dated 30.10.2010. In this affidavit it has been stated that Mr. Pramod Avasthi was acting as a commission agent for both the parties and the petitioner had initially supplied material till April, 2008 as per requirement containing an iron ore content of 80% but thereafter the material supplied contained a 50% FE which was a waste; assurance was given by the petitioner that he would lift his defective material and that is why 'C' Form came to be issue....
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....he so called defective material but in the later affidavit, he has made a substantial improvement that the petitioner had agreed to lift the defective material in March, 2009 and that is how the 'C' Form came to be issued on 17.03.2009. The defence of the respondent largely based on these affidavits clearly appears to be suspect. 20 The reply of the respondent also clearly and categorically states that he had sent a communication to the petitioner about the defect in the goods; no such communication is on record; this defect relates to a transaction which had taken place in July, 2007 even then the respondent issued 'C' Form on 17.03.2009 i.e. two years later without a demur. 21 No mention of the defect in the goods supplied by the petiti....