SHEETAL FABRICS Vs. COIR CUSHIONS LTD

JUDGEMENT

(1.) The petitioner by means of this petition, is seeking winding up of the respondent company. The petition is filed under the provisions of Section 433(e), 434 and 439 of the Companies Act, 1956. However, primary ground is that the respondent company is indebted to the petitioner in the sum of Rs. 3,52,471 /- and is unable to pay the debt.

(2.) According to the petitioner, it is running the business of cloth i.e. furnishing fabrics, etc. Orders were placed by the respondent company on the petitioner firm from time-to-time with effect from 3rd June, 1992 to 1st August 1995 for supply of this material. The material for a total value of Rs. 5,49,221/- was supplied against various invoices/bills. Out of this amount, the respondent company paid only a sum of Rs. 1,96,750/- thus leaving a balance of Rs. 3,52,471 /-. It is stated that the payment of Rs. 1,96,750/- made by the respondent company to the petitioner included last payment of Rs. 24,467/- which was made on 15th September, 1995 by means of a cheque. Since the respondent company did not make further payments, the petitioner has calculated interest on the overdue payment at the rate of 18 per cent per annum after the expiry of 30 days from the date of invoices and in this manner further sum of Rs. 3,20,683/- as interest is added for the period upto 15th August, 1998, thus making a total sum of Rs. 6,73,154/-. The petitioner sent statutory notice dated 28th July, 1998 which, according to the petitioner, was received by the respondent company on 3rd August, 1998 and in support of this plea, acknowledgement card purported to have signed on behalf of the respondent company is annexed with the petition. The case of the petitioner is that in spite of this notice, the dues of the petitioner were not paid and, therefore, it be deemed that the respondent company is unable to pay the debt. It is also stated in the petition that the respondent company had borrowed loan from other companies including PICUP and even that is outstanding. The debt is also due to one M/s. Mahesh Ramdas Kanani of Mumbai for an amount of approximately Rs.. 18 lacs and the said party has also filed a suit against the respondent company in the Bombay High Court being Suit No. 463/1996.

(3.) The respondent company has contested the petition by filing reply in which maintainability of this petition is challenged, inter alia, on the ground that the respondent company is commercially solvent and is able to pay its debts as and when established by its credito. The claim of the petitioner is denied. It is also stated that in any case, the said claim is time-barred. The receipt of the statutory notice is also denied. Another preliminary objection raised is that the petitioner could not file this petition as it is not a registered firm and, therefore, the petition is barred under Section 69 of the Partnership Act. Thus, in nutshell, following defence is raised in the reply: (a) The amount is disputed. (b) Statutory notice was not served upon the respondent company. (c) The amount claimed is barred by limitation... (d) The petitioner firm is not a registered firm and, therefore, incapable of filing the present proceedings. (e) The respondent company is commercially solvent and the petition is misconceived.