WIPRO LTD Vs. ACTION CONSTRUCTION

JUDGEMENT

(1.) The case set up in this petition is that the petitioner company carries on, inter alia, the business of manufacture of hydraulic pumps, cylinders and other allied items etc. The respondent company is engaged in the manufacture and sale of automotive and construction equipment. The parties have been doing the business with each other for a long time and as per orders placed,, the petitioner has been supplying the materials i.e. hydraulic cylinders to the respondent. It is further stated that the petitioner has been raising various bills and invoices. However, the respondent always delayed the payment and was regular defaulter in payment. Still because of cordial relationship between the parties the petitioner over-looked the delay and kept reminding the respondent to make payment. After much delay the respondent made payment of Rs. 1,00,000/- vide Cheque No.723753 dated 24.2.2000 drawn on Punjab National Bank, Nehru Place, New Delhi. This cheque was, however, returned with the remarks "full cover not received". The petitioner made repeated requests thereafter and was even given an assurance but payment of outstanding amount was not paid ultimately. Legal notice dated 5.7.2001 was sent demanding payment of Rs.11,47,498/- along with interest @ 24% p.a. This notice was duly served but the respondent did not clear the outstanding. It is also averred that respondent has admitted the liability. Therefore, this petition is filed seeking winding up of the respondent company on the ground that it is unable to pay the aforesaid debts.

(2.) In the reply filed by the respondent it is stated that there is no outstanding and as per petitioner's own letter dated 3.3.2000 while sending confirmation as on 31.12.1999 it was stated that there was nil balance according to petitioner's books of accounts. A copy of this letter is annexed as Annexure R-1. Preliminary objection is also made to the maintainability of this petition on the ground that the petitioner has not been able to show as to how the amount of Rs. 11,47,498/- is due as no details are given. According to the respondent there is no such debt due.

(3.) After hearing the counsel and going through the record, I am of the view that the preliminary submission of the respondent deserved to be sustained. It may be mentioned at the outset that in spite of repeated opportunities given to the petitioner, rejoinder-affidavit has not been filed. Last opportunity of four weeks was given for this purpose on March 4,2004 and the case was adjourned to 28.7.2004. On that date also rejoinder-affidavit was not filed and the petitioner prayed for further time. Although there was no satisfactory explanation, still one more opportunity was given subject to payment of Rs. 2,000/- as cost. On 25.10.2004 statement was made that rejoinder was filed but, it was not on record. The counsel was asked to contact the Registry and get the same placed on record and it was categorically stated that no further adjournment shall be given and the matter was adjourned for today. Still no such rejoinder has come on record. Even cost imposed is not paid. Therefore, in the absence of rejoinder on record, I have to proceed on , the basis that the averments made in the reply are not traversed by the petitioner.