G K W LIMITED Vs. SHRIRAM BEARINGS LIMITED

JUDGEMENT

(1.) The present petition by G.K.W.Limited has been filed seeking winding up order against respondent, primarily on the ground that the respondent company placed order upon petitioner for the supply of diverse quantities of materials of iron and steel. These orders were placed by the respondent company upon petitioner from April,1994 to August,1996. For the sale and delivery of these diverse quantities of materials of iron and steel petitioner raised 23 invoices/ bills amounting to Rs.54,84,784.85 paise. The respondent company paid Rs.5,77,000.00 leaving the balance of Rs.49,07,785.85 paise against the outstanding bills. This amount of the bills has not been paid by the respondent company inspite of repeated demands. Finally statutory notice was served on the respondent company. As per petitioner, the respondent company is still indebted to it to the tune of Rs.49,07,785.85 paise.

(2.) Respondent challenged the claim of the petitioner on legal grounds as well as on merits. Legal objections relate to the maintainability of this petition. It is the defence of the respondent that since the petition is based on running account, therefore, not maintainable. Secondly the affidavit filed in support of winding petition is not in accordance with Rule 21 of the Companies Rule and Form No.3. Finally, supply made by the petitioner was irregular and defective, therefore, there exist serious commercial dispute. This Court under the Companies Act cannot adjudicate the dispute. On merits it has been contended that the supply of materials was irregular with the result the respondent company suffered losses. The question of supply of defective material and irregular supply was brought to the notice of the petitioner immediately after the supply was made in September,1996. That the company is entitled to a counter claim. The petitioner is not entitled to any amount.

(3.) After hearing counsel for the parties, I have taken up the second legal objection raised by respondent first. Lets examine whether the affidavit filed in support of the petition is in accordance with the rules and the form. Admittedly, the affidavit filed with the petition is not properly verified. Rule 21 of Companies (Court) Rules 1959, deals with the verification of the affidavit to a company petition. Reading of Rule 21 clearly show that the affidavit has to be in Form No.3. In order to appreciate the arguments, Rule 21 and Form No.3 are reproduced as under:-