G.K.W. LTD Vs. SHRIRAM BEARINGS LTD

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/ - having 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 inspire 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 defense 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.) COMBINED reading of Form No. 3 and Rule 21 makes it clear that the person verifying the affidavit has to disclose whether he is Director or Secretary of the company or an authorised person empowered to sign the affidavit. He has also to indicate which of the paragraphs are true on the basis of information received and believed by him. Perusal of the affidavit filed with this petition by Shri Avinash Chawla shows that he was only an Assistant Manager of the petitioner company. He nowhere disclosed how he was competent to verify this affidavit. By mere assertion that he was fully authorised by the petitioner company to sign and verify the affidavit is not enough to conclude that the affidavit has to be signed and verified by a duly authorised person nor it can be said to be in accordance with Form No. 3. Mr. Chawla has deposed in the affidavit that he was well acquainted with the facts and circumstances of the case. Reading of para 2 of the affidavit shows that he has not disclosed which of the paragraphs are based on information derived by him and which were of his personal knowledge. On the contrary reading of para No. 2 of the affidavit shows Mr. Chawla verified the facts of the petition on his personal knowledge: