KAMADHENU ENTERPRISES Vs. VIVEK TEXTILE MILLS P LTD

JUDGEMENT

(1.) This is a petition under S. 433 (e) and (f) of the Companies Act, 1956 (hereinafter referred to as 'the Act'). The petitioner is a registered firm under the Partnership Act. The petitioner firm is a dealer in chemicals. The petitioner firm has alleged that it supplied on various dates commencing from 6-11 1979 till 27 12 1979 chemicals to the respondent- Company amounting to Rs. 35,180 60. It is further alleged that a sum of Rs. 17,700 in respect of the various invoices has been paid and the balance has not been paid in spite of statutory notice issued. Therefore, the present petition seeking for winding up of the respondent Company as it is unable to pay its debts.

(2.) The petition is resisted by the respondent Company on the ground that the claim of the petitioner-firm is not tenable to a large extent ; that the respondent-Company is liable to pay only the sum of Rs. 8,237-30 ; that the petitioner-firm was informed of this position as far back as 31-1-1981; that one of the Directors of respondent Company wrote to the petitioner-firm denying the liability to pay the sum of Rs. 17,700 but admitted the laibility to the extent of Rs.8,237-30. Even as far back as 1st September, 1980 the respondent Company had written to the petitioner firm stating that the firm had been debited in the sum of Rs. 9,462 73 being the excess claim in respect of some of the invoices. This is evidenced by the letter produced by the petitioner- firm itself as Annexure C to the petition.

(3.) In this view of the matter admittedly there is a genuine dispute as to the liability of the respondent-Company to pay the aforementioned difference between what has been admitted and what has been claimed. It is not proper, in such a circumstance, to decide the same in this summary proceeding. Normally, the petitioner firm should have approached a Civil Court the moment the amount claimed was denied by the respondent-Company. Instead of doing that the petitioner has approached this Court under S. 433 of the Act.