ASHOKA INDUSTRIES Vs. TOBU ENTERPRISES LIMITED

JUDGEMENT

(1.) The facts in the present case are that three Purchase Orders were placed by the Respondent Company (for short "the Company') which were as follows: <FRM>JUDGEMENT_181_ILRDLH10_2002Html1.htm</FRM> Deliveries were duly made and subsequent thereto 15 (Fifteen) Bills were raised covering the three consignments. The Company had made part payments from time to time leaving a balance of Rs.4,16,261/-, being the amounts of the last three Bills less a sum of Rs.75,000/- received on 18.2.1999. After the issuance of a legal notice under Section 434 of the Companies Act, 'Central Sales Tax Declaration Forms C', were forwarded to the Petitioner by the Company, but the outstanding notified sum of Rs.4,16,261/- was not cleared. Under cover of the Company's letter dated 13.1.2000 a Statement of Accounts was forwarded by it showing a sum of Rs.3,79,757/- due and payable to the Petitioner. This was responded to by the Petitioner by its letter dated June 21, 2000 stating that a sum of Rs.4,16,261/- was due and payable. It will be relevant to immediately note that there is a clear admission of debt in the sum of Rs.3,79,757/-. In addition thereto there is collateral evidence in support of the Claim of Rs.4,16,26l/-, inasmuch as 'C' Forms in respect of all the transactions stand forwarded by the Company to the Petitioner.

(2.) The Defence to the winding-up petition is that 5,500 Plate Butt Assemblies ordered and delivered against Company's Purchase Order No. 685 dated 2.2.1997 were defective. After their delivery to the Respondent, these Plate Butt Assemblies were used in the manufacture of rifles supplied by the Company to the Rifle Factory at Ishapore, West Bengal. The receipt of complaints were conveyed to the Petitioner by the Company in its letter dated 21st May, 1998 calling upon the former "either to rectify the Butt Assy. lying in our stock or Lake the deviation approval from CQA (SA), Calcutta for this lot so that we can utilise the Butt Plates". The Company has filed the Petitioner's letter dated July 28, 1998, inter alia, stating that it would rectify the deviations in future orders received in due course. The Company has also relied on a letter dated 8.6.2001 emanating from the Office of the Joint General Manager, Government of India, Ministry of Defence, Ordnance Factory, Tiruchirapalli addressed to the General Manager, Rifle Factory, Ishapore in which it has been stated that a Bill of the Company for a total value of Rs.5,34,379 has been withheld pursuant to the addresse's letter dated 24.5.2001. It needs to be emphasised that this communications has been made after three years of the delivery of the disputed Plate Butt Assemblies.

(3.) Along with the Rejoinder the Petitioner has filed a letter dated 6.8.1998 from Shri K.K.Mukherjee (JSO), (government of India, Ministry of Defence (DGQA), Sr. Quality Assurance Estt. (Armaments), Hastings Post Offoce, Calcutta addressed to the Controller, Controllerate of Quality Assurance (SA), Ishapore, Nawabganj, 24-Parganas(N), West Bengal, the contents of which reads as follows;